Judgments

[1994] 2 F.C. 524

T-2248-92

The Attorney General of Canada (Applicant)

v.

Douglas H. Martin, Ernest H. Grossek, Robert James Slavik, David E. Kilmartin, Ronald McIsaac, J. Jacques Lemieux, Raymond Blanchet, Gerald Robicheau, Ronald Lavigne, Peter McCullough and Canadian Human Rights Commission (Respondents)

Indexed as: Canada (Attorney General) v. Martin (T.D.)

Trial Division, Tremblay-Lamer J.—Ottawa, December 8, 1993 and January 31, 1994.

Human rights — Application for judicial review of decision by Canadian Human Rights Tribunal Canadian Forces compulsory retirement age policy discrimination in employment contrary to CHRA, ss. 7, 10 — Respondents forced to retire at 55 under Q.R.&O., arts. 15.17, 15.31 — Tribunal right in finding CHRA, s. 15(b) not applicable — BFOR test including subjective, objective elements — Objective component based on rationality, proportionality of employer’s policies — To meet rationality test, means used must be rationally connected to objectives — Individual testing alternative to compulsory retirement age — Testing to assess level of fitness feasible — CAF mandatory retirement policy not BFOR under Act, s. 15(a).

Armed forces — Compulsory retirement age of 55 for CAF officers, other ranks under Q.R.&O., arts. 15.17, 15.31 — Whether discrimination in employment contrary to CHRA, ss. 7, 10 — CAF mandatory retirement policies imposed in good faith as necessary to overall effectiveness of Forces — Rational connection required between safety/medical objectives and mandatory retirement policy — Compulsory retirement age not reasonably necessary to attaining objectives — Individual testing alternative to retirement policy — CAF capable of developing necessary tests — Aerobic capacity better indicator of fitness than age — Mandatory retirement policy not BFOR under CHRA, s. 15(a).

This was an application for judicial review of a decision of the Canadian Human Rights Tribunal that the compulsory retirement age policy adopted by the Canadian Armed Forces (CAF) constitutes discrimination in employment on the basis of age contrary to sections 7 and 10 of the Canadian Human Rights Act (CHRA). The compulsory retirement age of officers and other ranks in the CAF is 55 under the Queen’s Regulations and Orders for the Canadian Forces (Q.R.&O.), articles 15.17 and 15.31. The CAF conceded before the Tribunal that its mandatory retirement policy constituted a discriminatory practice under sections 7 and 10 of the CHRA but sought to justify it on two grounds: first, this policy was a bona fide occupational requirement (BFOR) within the meaning of paragraph 15(a) of the Act; and second, it constituted “regulations” within the meaning of paragraph 15(b) of the Act. The Tribunal ruled that paragraph 15(b) was not applicable to Q.R.&O. 15.17 and 15.31 since the latter contain no reference to the CHRA and are not regulations made for the purposes of paragraph 15(b) of the CHRA. After examining the social, structural, safety and medical reasons advanced by the CAF, the Tribunal concluded that it had not been proven that it was not feasible to assess the risk presented by each member on an individual basis by means of appropriate tests, and therefore that the general exclusion constituted a BFOR. This appeal raised two main issues: 1) whether paragraph 15(b) of the CHRA is applicable to Q.R.&O. 15.17 and 15.31, and 2) whether the mandatory retirement policy of the CAF was a BFOR under paragraph 15(a) of the CHRA.

Held, the application should be dismissed.

1) The guiding principle of the CHRA being the removal of discrimination, any exception to this principle must be interpreted restrictively and with regard to the overall objectives of that Act. Therefore, Q.R.&O. 15.17 and 15.31 could not be included within the meaning of paragraph 15(b) of the CHRA unless there was evidence of a clear intention on the part of the Legislature and the Governor in Council that they be so included. They contain no indication that they were made for the purposes of paragraph 15(b) of the CHRA, especially since they were passed prior to the enactment of that section. The Tribunal committed no error in law in finding that paragraph 15(b) does not apply to Q.R.&O. 15.17 and 15.31.

2) The test relating to the BFOR has two components, both of which are to be proven by the employer. The first is that the employer’s motives, measured subjectively, for implementing the work rule must be to assure the “efficient and economical performance of the job”. The second is an objective inquiry as to whether the limitation is “reasonably necessary” for achieving that legitimate purpose. There was no issue pertaining to the subjective branch of the test: the mandatory retirement policies of the CAF were imposed in good faith based on the belief that they were necessary to the overall effectiveness of the Forces. The objective component is based upon the requirements of rationality and proportionality of the employer’s policies. For the purposes of the present analysis, the overall objective of military effectiveness presents two different aspects, structural/organizational and safety/medical. In order to meet the test of rationality, the means used by the CAF (the compulsory retirement age of 55) must be rationally connected to its objectives. They must be reasonably necessary to achieve those ends, not just administratively convenient; and they cannot be the product of mere impressions, stereotypes or unsubstantiated generalizations. With respect to the structural objectives of the CAF, the real question was whether the connection between the means used and the objectives is a rational one. According to the evidence, a 10% yearly turnover in personnel is needed to meet the structural requirements of the CAF; the overall proportion of this required turnover attributable to the compulsory retirement policy itself is only 1% and of this number only a small percentage would choose to stay on if mandatory retirement were abolished. Thus, the Tribunal’s conclusion that the compulsory retirement policy is not reasonably necessary to attaining the objectives of the CAF was well-founded. The organizational effectiveness of the CAF is not as tightly bound up with mandatory retirement as could be the case in other contexts. When the employer’s objectives relate to issues of health and safety, the adjudicating body must assess the risk factor in determining whether the means are rationally connected to the objectives. The requirement in the CAF for physically fit personnel who are at all times trained and prepared for war is a rational objective directly tied to the prime directive of that organization. It was also acknowledged that mandatory retirement is rationally connected to this end; in other words, that the age of CAF personnel is related in a rational way to the tasks that are required of them and to the harsh conditions they must sometimes endure.

The central issue was whether the Tribunal had erred in concluding that although the compulsory retirement age of 55 was rationally connected to the safety/medical objectives of the CAF, it was not ultimately necessary since the CAF was capable of developing and implementing tests which could accurately assess the fighting capability of its personnel. Pursuant to the principle of proportionality, any measure that limits the rights of individuals guaranteed under human rights legislation must infringe upon those rights as little as possible. That raised the issue as to whether there are reasonable alternatives to the mandatory retirement policy which could attain the objective of a well-trained, combat-ready force. In this case, individual testing was the alternative explored by the Tribunal. The standard of proof which should be applied to the determination of whether individual testing is a reasonable alternative is “feasibility” rather than “possibility”. It is important to determine the feasibility of individual testing both in relation to assessing a given level of fitness and to detecting the diseases linked to aging that may prevent individuals from being operationally effective in times of greatest need. The evidence indicated that testing in order to assess the level of fitness was feasible. For example, aerobic capacity is a good indicator of performance capacity and a better predictor of fitness levels than age. Therefore, it was not reasonable to exclude an entire sector of the CAF from employment solely on the basis of age. The Tribunal was right in concluding that the CAF mandatory retirement policy was not a BFOR within the meaning of paragraph 15(a) of the CHRA.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 15.

Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 7, 10, 15(a),(b).

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

Criminal Code, R.S.C. 1970, c. C-34, ss. 2(f) (as am. by S.C. 1972, c. 13, s. 2), 235(2) (as enacted by S.C. 1974-75-76, c. 93, s. 16).

Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5).

General Pilotage Regulations, C.R.C., c. 1263, s. 4(1)(a).

Individual’s Rights Protection Act, R.S.A. 1980, c. I-2, s. 11.1 (as enacted by S.A. 1985, c. 33, s. 5).

National Defence Act, R.S.C. 1970, c. N-4, ss. 12(1), 134 (as enacted by S.C. 1972, c. 13, s. 73.1).

Pilotage Act, S.C. 1970-71-72, c. 52, s. 42(a).

Queen’s Regulations and Orders for the Canadian Forces (1968 Revision), arts. 15.17, 15.31, 22.01 (as am. by P.C. 1976-1799).

CASES JUDICIALLY CONSIDERED

FOLLOWED:

Ontario Human Rights Commission et al. v. Borough of Etobicoke, [1982] 1 S.C.R. 202; (1982), 132 D.L.R. (3d) 14; 82 CLLC 17,005; 40 N.R. 159; Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279; (1988), 53 D.L.R. (4th) 609; 10 C.H.R.R. D/5515; 88 CLLC 17,031; 88 N.R. 321; 18 Q.A.C. 164; Saskatchewan (Human Rights Commission) v. Saskatoon (City), [1989] 2 S.C.R. 1297; (1989), 65 D.L.R. (4th) 481; [1990] 1 W.W.R. 481; 81 Sask. R. 263; 11 C.H.R.R. D/204; 90 CLLC 17,001; 45 C.R.R. 363.

APPLIED:

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; (1989), 56 D.L.R. (4th) 1; [1989] 2 W.W.R. 289; 34 B.C.L.R. (2d) 273; 25 C.C.E.L. 255; 10 C.H.R.R. D/5719; 36 C.R.R. 193; 91 N.R. 255; Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483; [1991] 1 W.W.R. 577; (1990), 52 B.C.L.R. (2d) 1; 91 CLLC 17,003; Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489; (1990), 111 A.R. 241; 72 D.L.R. (4th) 417; [1990] 6 W.W.R. 193; 76 Alta. L.R. (2d) 97; 33 C.C.E.L. 1; 12 C.H.R.R. D/417; 90 CLLC 17,025; 113 N.R. 161; Saskatchewan (Human Rights Commission) v. Moose Jaw (City), [1989] 2 S.C.R. 1317; Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321; (1992), 9 O.R. (3d) 224; 93 D.L.R. (4th) 346; 138 N.R. 1; 55 O.A.C. 81.

DISTINGUISHED:

Pacific Pilotage Authority v. Arnison, [1981] 2 F.C. 206; (1980), 116 D.L.R. (3d) 736; 1 C.H.R.R. D/225; 81 CLLC 14,071; 34 N.R. 22 (C.A.); Dickason v. University of Alberta, [1992] 2 S.C.R. 1103; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; (1990), 76 D.L.R. (4th) 545; 91 CLLC 17,004; 2 C.R.R. (2d) 1; 118 N.R. 1; 45 O.A.C. 1.

CONSIDERED:

R. v. Nolan, [1987] 1 S.C.R. 1212; (1987), 79 N.S.R. (2d) 394; 41 D.L.R. (4th) 286; 196 A.P.R. 394; 34 C.C.C. (3d) 289; 58 C.R. (3d) 335; 49 M.V.R. 140; 77 N.R. 81.

REFERRED TO:

Robinson v. Canada (Armed Forces) (1991), 15 C.H.R.R. D/95 (Can. Trib.); Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd. et al., [1985] 2 S.C.R. 536; (1985), 23 D.L.R. (4th) 321; 17 Admin. L.R. 89; 9 C.C.E.L. 185; 7 C.H.R.R. D/3102; 86 CLLC 17,002; 64 N.R. 161; 12 O.A.C. 241; Winnipeg School Division No. 1 v. Craton et al., [1985] 2 S.C.R. 150; (1985), 21 D.L.R. (4th) 1; [1985] 6 W.W.R. 166; 38 Man. R. (2d) 1; 15 Admin. L.R. 177; 8 C.C.E.L. 105; 85 CLLC 17,020; 61 N.R. 241; Insurance Corporation of British Columbia v. Heerspink et al., [1982] 2 S.C.R. 145; (1982), 137 D.L.R. (3d) 219; [1983] 1 W.W.R. 137; 39 B.C.L.R. 145; 3 C.H.R.R. D/1163; 82 CLLC 17,014; [1982] I.L.R. 1-1555; 43 N.R. 168; Grand Trunk Pacific Railway Co. v. Dearborn (1919), 58 S.C.R. 315; 47 D.L.R. 27; [1919] 1 W.W.R. 1005; Canada (Attorney General) v. Martin, A-573-93, Hugessen J.A., judgment dated 16/11/93, F.C.A., not yet reported; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; (1988), 54 D.L.R. (4th) 577; 10 C.H.R.R. D/5559; 36 C.R.R. 1; 90 N.R. 84; 19 Q.A.C. 69; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; (1984), 9 D.L.R. (4th) 161; 11 C.C.C. (3d) 481; 53 N.R. 169; 3 O.A.C. 321; R. v. Oakes, [1986] 1 S.C.R. 103; (1986), 26 D.L.R. (4th) 200; 24 C.C.C. (3d) 321; 50 C.R. (3d) 1; 19 C.R.R. 308; 14 O.A.C. 335; Cashin v. Canadian Broadcasting Corporation, [1988] 3 F.C. 494; (1988), 20 C.C.E.L. 203; 9 C.H.R.R. D/5343; 88 CLLC 17,019; 86 N.R. 24 (C.A.); Bhinder et al. v. Canadian National Railway Co. et al., [1985] 2 S.C.R. 561; (1985), 23 D.L.R. (4th) 481; 17 Admin. L.R. 111; 9 C.C.E.L. 135; 86 CLLC 17,003; 63 N.R. 185; Air Canada v. Carson, [1985] 1 F.C. 209; (1985), 18 D.L.R. (4th) 72; 6 C.H.R.R. D/2848; 57 N.R. 221 (C.A.); Kibale v. Canada (Transport Canada) (1988), 10 C.H.R.R. D/6100; 88 CLLC 17,022; 90 N.R. 1 (F.C.A.); Rohm & Haas Canada Ltd. and Anti-dumping Tribunal, Re (1978), 91 D.L.R. (3d) 212; 22 N.R. 175 (F.C.A.).

AUTHORS CITED

Driedger, E. A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.

APPLICATION for judicial review of a decision of the Canadian Human Rights Tribunal ((1992), 17 C.H.R.R. D/435 (Can. Trib.)) that the CAF compulsory retirement age policy constitutes discrimination in employment on the basis of age contrary to sections 7 and 10 of the Canadian Human Rights Act. Application dismissed.

COUNSEL:

Barbara A. McIsaac and Major Randall Smith for applicant.

René Duval for respondents.

SOLICITORS:

Deputy Attorney General of Canada for applicant.

Canadian Human Rights Commission, Ottawa, for respondents.

The following are the reasons for order rendered in English by

Tremblay-Lamer J.:

THE FACTS

The applicant Attorney General of Canada seeks judicial review, pursuant to section 18.1 of the Federal Court Act, R.S.C., 1985, c. F-7 [as enacted by S.C. 1990, c. 8, s. 5], of the decision of the Canadian Human Rights Tribunal [Martin v. Canada (Dept. of National Defence) (1992), 17 C.H.R.R. D/435] in which it ruled that the compulsory retirement age policy pursued by the Canadian Armed Forces constitutes discrimination in employment on the basis of age contrary to sections 7 and 10 of the Canadian Human Rights Act[1] (hereinafter “CHRA”).

The case before the Tribunal involved ten complainants. Nine of the complainants were former members of the Canadian Armed Forces (hereinafter “CAF”) now retired; one of the complainants, Douglas Martin, is currently a serving officer in the CAF. David Kilmartin and Robert Slavik are retired officers. The other complainants had attained various non-commissioned ranks at their retirement. All of the complainants except Captain Martin had been compulsorily retired from the CAF.

The CAF terms of service relating to the compulsory retirement age (hereinafter “CRA”) of officers and other ranks are set out in the Queen’s Regulations and Orders for the Canadian Forces (1968 Revision) (hereinafter “Q.R.&O.”), articles 15.17 for officers and article 15.31 for other ranks. The CRA is the same for both groups of personnel, namely age 55. These terms of service came into effect on April 1, 1976 for general service officers; July 1, 1978 for specialist officers; and April 1, 1978 for other ranks. The new terms apply to all officers who commenced service after April 1, 1976 (1978 for other ranks) and to those whose service commenced prior to these dates but who have converted to the new terms. Those members whose service commenced prior to these dates and who chose not to convert to the new terms were bound by their original terms of service under which the retirement age was determined by either the pre-1968/pre-unification terms of service or the post-1968/post-unification terms of service depending on the time of enlistment.

The new terms of service were introduced as part of the Officer Career Development Program (hereinafter “OCDP”) and the Other Ranks Career Development Program (hereinafter “ORCDP”). The OCDP and ORCDP are three-tiered systems. The first stage is comprised of a “short engagement” of nine years for officers or a “basic engagement” of three years for other ranks with a possible three year extension. Prior to the end of this stage, officers and other ranks enter the conversion selection zone for the “intermediate engagement”, and if the offer is accepted, the officer or other rank member will serve for a period of 20 continuous years. Between the 15th and 20th year of service, officers enter another conversion zone during which time they may be offered an “indefinite period of service” (hereinafter “IPS”) until age 55. Members of the other ranks are also considered for an IPS on the basis of merit, rank and military occupation. Those not offered an IPS are released unless offered a lesser engagement for a fixed period of up to 5 years after which they are released.

The introduction of the OCDP and ORCDP did not result in the automatic conversion of all serving members to the new terms of service. “Transition provisions” were devised in the interests of the CAF and serving members under which collective offers were made of the new terms of service to serving officers in their early years of service as well as those with less than nine years commissioned service. Also, selective offers were made to those approaching the conversion zone to an IPS. A three-year conversion zone was also established for those officers who, as of April 1, 1976, had attained the later of 17 years of service or 37 years of age until they reached the 20/40 point, that is, 20 years service or 40 years of age. During this period, officers were considered for offers of an IPS depending on rank, merit, quota and military occupation. Those offered an IPS would serve until age 55. Those not offered an IPS within the three-year period would continue to serve under their previous terms of service. Similar transition provisions applied under the ORCDP.

Of the ten complainants, only Grossek and Martin were made offers of an IPS with a CRA of 55. Grossek was released when he attained his CRA of 55 and Martin is due to be retired when he reaches 55 years. The remaining complainants[2] were released as a result of the OCDP, the ORCDP and the transition provisions either because they had not attained the base rank necessary to qualify for an IPS offer or did not satisfy the other eligibility criteria for selection (i.e. merit, military occupation and the organizational requirements of the CAF).

The CAF conceded before the Tribunal that its mandatory retirement policy constituted a discriminatory practice under sections 7 and 10 of the CHRA. Rather, the CAF sought to justify it on two grounds: first, that this policy was a bona fide occupational requirement (hereinafter “BFOR”) within the meaning of paragraph 15(a) of the CHRA; and second, that it constituted “regulations” within the meaning of paragraph 15(b) of the CHRA.

During the hearing, the Commission raised the question of the constitutional validity of both the Q.R.&O. 15.17 and 15.31 and paragraph 15(b) of the CHRA, arguing that these provisions discriminated on the basis of age and thus contravened section 15 of the Canadian Charter of Rights and Freedoms[3] (hereinafter “Charter”) and were not saved by section 1 thereof.

DECISION OF THE TRIBUNAL

In the Tribunal’s opinion, it was not necessary to consider the Charter issue unless it concluded that paragraph 15(b) of the CHRA was applicable to Q.R.&O. 15.17 and 15.31. Paragraph 15(b) of the CHRA provides that:

15. It is not a discriminatory practice if

…

(b) employment of an individual is refused or terminated because that individual has reached … the maximum age, that applies to that employment by law or under regulations, which may be made by the Governor in Council for the purposes of this paragraph.

The Tribunal found that paragraph 15(b) was not applicable in this instance, stating the following, at page D/442 of its decision:

If meaning is to be given to these words in the context of the paragraph, it must be that a statute or regulation must clearly and unequivocally be made for the purposes of the said paragraph if they are to be exempt from the CHRA.

Q.R.&O. 15.17 and 15.31 contain no reference to the CHRA. This is not surprising because they were passed prior to the enactment of the CHRA. Thus, even in the absence of express wording, it is difficult to accept the argument that they are regulations made for the purposes of s. 15(b) of the CHRA.

The Tribunal then dealt at length with the question of whether Q.R.&O. 15.17 and 15.31 constituted a BFOR within the meaning of paragraph 15(a) of the CHRA. The starting point of its analysis was the test elaborated by the Supreme Court of Canada in Ontario Human Rights Commission et al. v. Borough of Etobicoke[4] which posits a two-part subjective/objective assessment of the evidence.

There was no question for the Tribunal that the mandatory retirement policy was imposed in good faith (the subjective branch of the test). The validity of the policy would depend, rather, on whether the Armed Forces had justified it as being “reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public”.[5] To this end, it examined the social, structural, safety and medical reasons advanced by the CAF.

(i)         Social and Structural Requirements

The Tribunal recognized that the CAF was of finite size and highly structured. Consequently, the requirement that it train its own people made it imperative that there be a steady flow through of personnel from the lower ranks to the higher ranks. For this reason, the CAF argued, it developed the OCDP and ORCDP, a three-tiered system of exit controls, including the final exit point at the CRA of 55, as an organizationally necessary, humane and justifiable means of accomplishing these goals. Although it recognized these arguments as legitimate in a general sense, the Tribunal found that they were not compelling in the context of the Canadian military.

Between 1985 and 1990, the overall proportion of the 10% yearly turnover necessary to provide both a trained base of people for the junior ranks and good career opportunities that was attributable to the CRA was approximately 1%. In addition, it would be unlikely that a member with 30-35 years of service and a fully paid-up annuity equivalent to 70% of salary would stay much beyond the age of 55. Also, if the CRA were abolished, it would still be possible to establish the historical base needed to predict the attrition rate necessary for organizational efficiency, though after some delay.

The Tribunal considered and accepted the findings of two research projects concerning a CRA of 65 which it judged relevant to the situation before it. One was conducted by the Ministry of Manpower in Quebec, where mandatory retirement was abolished for some business enterprises, and the other by the Task Force on Mandatory Retirement in Ontario. Both studies found that a small percentage of the total salaried employees, somewhere between 1% and 4%, would choose to stay on past the established age of retirement if it were no longer compulsory.

The Tribunal noted that the abolition would place greater emphasis on testing for physical and medical fitness but rejected the submission that the failure of CAF personnel to pass such tests would result in personal humiliation. A significant difference was perceived between subjecting university professors, for example, to competency tests and subjecting military personnel to fitness and health requirements. In any event, failing to satisfy the appropriate criteria did not automatically entail release since there was a practice of waiving medical deficiencies in certain circumstances or channelling members into programs which would allow them to meet the applicable minimum standards.

Finally, the claim that the removal of the CRA would have serious consequences on the pension scheme was also dismissed. Currently, there was a maximum limit of 35 years of pensionable service and there was a tendency for members to leave the CAF once they had maximized their pension. In fact, because pensions in the CAF were indexed to the Consumer Price Index, in situations where annual pay raises did not match the inflation rate, members might be financially better off leaving the CAF early.

Ultimately, the Tribunal concluded that the CRA was not “reasonably necessary” from a social/structural standpoint, though it may have been convenient for the forecasting and planning needs of the CAF.

(ii)        Safety/Medical Considerations

Fitness testing

The CAF submitted evidence regarding safety concerns arising from the deteriorating effects on an individual caused by the aging process and the potentially harmful consequences in terms of a soldier’s performance in combat conditions.

The Tribunal followed the test laid out in Robinson v. Canada (Armed Forces)[6] to the effect that the CAF bears the onus of showing, on a balance of probabilities:

(1) that the group of persons—for example, epileptics—excluded by its employment policy presents “a sufficient risk of employee failure” … to warrant its general exclusion, (2) that it is impossible to assess the risk presented by each member of a protected group on an individual basis and (3) that the blanket exclusion of a category of persons is not an excessive means, that is, it is proportional to the end being sought.

Concerning the individual assessment component of the test, the Tribunal concluded that the CAF had failed to prove that it was not feasible to assess the risk presented by each member on an individual basis by means of appropriate tests, and therefore that the general exclusion constituted a BFOR. It was satisfied that there existed sufficient, inexpensive means of ensuring that individuals, regardless of their age, could meet an appropriate fitness standard.

The Tribunal observed that the CAF did not appear to have in place a general standard of fitness.[7] The yearly fitness tests of every CAF member involved push-ups, sit-ups, a hand grip strength test, a step test to measure aerobic capacity as well as weight and height measurements. The purpose of these tests, however, was to ascertain whether a member needed to improve his or her fitness. There was no link to the basic fitness level required to be a soldier.

Despite the inadequacy of the existing testing regime, the Tribunal determined that the CAF was capable of developing physical fitness and endurance tests that would enable it to evaluate on an individual basis every member’s capacity to fight as a soldier in adverse environmental conditions and under duress. The costs of such an endeavour would be relatively modest and the risk of physical injury arising from the implementation of the testing procedures would also be low.

Medical testing

The experts who testified about medical considerations identified a number of diseases that become more prevalent with age which may impact on functional performance, morbidity and mortality. These include coronary artery disease (CAD), stroke, cancer, osteoarthritis, peripheral vascular disease, diabetes mellitus and chronic obstructive pulmonary disease. Most of these are progressive in nature and easily tested for, diagnosed and monitored. The real concern, however, was seen to be the potential for sudden incapacitation caused by CAD or stroke and the consequences for the person involved, his or her colleagues and a given mission as a whole.

The Tribunal concluded that through risk factor assessment and testing, it was possible to predict or at least rule out the likelihood of an individual having a coronary artery disease (CAD) event or suffering a stroke, although not necessarily in all cases. Those persons who had some likelihood of suffering from CAD or stroke could be dealt with by the military without blanket resort to age. The costs and risks to the individuals being tested was seen as relatively low.

As for the methodology of testing, it was judged best left to the experts to devise the appropriate model. However, it would appear from the evidence that a step-by-step regime could be developed which would continue from the time of enlistment until retirement in order to ensure the fighting capability of the force. High standards would be applied to recruits; regular testing programmes would be developed for physical stamina, strength and aerobic capacity; annual screening of all members would take place for various risk factors such as blood sugar, blood pressure and cholesterol; and further testing procedures would be administered to those individuals who demonstrated two or more of these risk factors.

With respect to those over the age of 40, there would be a sequential screening process to identify those who may be susceptible to health problems. The initial screening would take place at the periodic or annual physical examination and if an established probability of risk of CAD was identified, further tests, such as an electro-cardiogram (ECG), thallium test or angiogram could be conducted.

Finally, the Tribunal observed that the CAF maintained personnel with medical conditions that made them ineligible to participate in combat conditions. This was quite contrary to the assertion by the CAF that every one of its members must be ready to face unlimited liability at any time. If the CAF could accommodate those individuals who were not fit for battle, then a general policy of mandatory retirement for all 55-year-old members was excessive and disproportionate to the objective of maintaining a capable corps of fighting personnel and could not qualify as a BFOR.

ISSUES

1.         Did the Tribunal err in determining that Q.R.&O. 15.17 and 15.31 do not constitute regulations as contemplated by paragraph 15(b) of the Canadian Human Rights Act;

2.         If the Tribunal did so err, an issue raised by the Human Rights Commission but not decided by the Tribunal was whether paragraph 15(b) of the Canadian Human Rights Act violates the Canadian Charter of Rights and Freedoms and if so, whether it constitutes a reasonable limit pursuant to section 1;

3.         If the regulations are not saved by paragraph 15(b), did the Tribunal err in determining that Q.R.&O. 15.17 and 15.31 and the ORCDP do not constitute a bona fide occupational requirement within the meaning of paragraph 15(a) of the Canadian Human Rights Act.

ANALYSIS

1)         THE APPLICABILITY OF PARAGRAPH 15(b) OF THE CANADIAN HUMAN RIGHTS ACT to Q.R.&O. 15.17 and 15.31 SETTING AGES FOR MANDATORY RETIREMENT

On this question, I agree with the conclusion of the Tribunal that paragraph 15(b) is not applicable in this instance. The guiding principle of the CHRA is the removal of discrimination, which is the effect of actions which impose on one person or group of persons obligations, penalties or restrictive conditions not imposed on other members of the community.[8] Any exception to this principle, whether in the form of a particular legislative provision or within the CHRA itself must be interpreted restrictively and with regard to the overall objectives of the CHRA.

This point was recently affirmed by the Supreme Court of Canada in Brossard (Town) v. Quebec (Commission des droits de la personne)[9] when it held that while rights guaranteed under human rights legislation should receive a broad interpretation, defences to the exercise of those rights should be interpreted narrowly.

In Winnipeg School Division No. 1 v. Craton et al.,[10] McIntyre J. stressed, at page 156, the requirement of a clear pronouncement of legislative intention in the event of a repeal, amendment or exception to human rights legislation.

In this light, the words “that employment by law or under regulations, which may be made … for the purposes of this paragraph” must be interpreted literally and restrictively. Q.R.&O. 15.17 and 15.31, therefore, cannot be included within the meaning of paragraph 15(b) unless there is evidence of a clear intention on the part of the Legislature and the Governor in Council that they be so included.

The applicant submitted that Pacific Pilotage Authority v. Arnison[11] is a binding authority in this matter. In that case, the respondent, upon attaining the age 50, was removed from the eligibility list maintained by the applicant for the employment of pilots. The position of the Authority was that this action, while constituting a contravention of sections 7 and 10 of the CHRA, was required of it by law pursuant to paragraph 4(1)(a) of the General Pilotage Regulations, C.R.C., c. 1263 which read:

4. (1) Every applicant for a license shall be

(a) not less than 23 years of age and not more than 50 years of age … 

The relevant exception section of the CHRA [Canadian Human Rights Act, S.C. 1976-77, c. 33] was paragraph 14(b) which contained the same wording as the present paragraph 15(b).

The Federal Court of Appeal decided that paragraph 4(1)(a) of the General Pilotage Regulations was valid. However, this decision was not based on the applicability of paragraph 14(b) of the CHRA, but rather turned on the interpretation of the word “minimum” in paragraph 42(a) of the Pilotage Act [S.C. 1970-71-72, c. 52] which empowered the Governor in Council to:

42. … make regulations

(a) prescribing for any region or part thereof the minimum qualifications respecting the navigational certificates, experience at sea, age and health of an applicant that an applicant shall meet before he is issued a license or pilotage certificate;

There was no mention in the decision of how paragraph 14(b) should be interpreted and what factors determined whether or not a particular provision or regulation fell within the scope of this section. Le Dain J.A. appeared to recognize the absence of discussion on this issue when he stated, at page 210:

It was not argued before me whether, as a general principle, the provisions of the Canadian Human Rights Act could affect the validity or application of statutory regulations that have been otherwise validly adopted, but without expressing an opinion on that question I am satisfied that the refusal of employment in the present case is sufficiently covered by the terms of section 14(b) of the Act … 

In light of the fact that no arguments were presented in Arnison with respect to the interpretation of paragraph 14(b), and noting that it was decided prior to the first decision of the Supreme Court of Canada on the proper interpretation of human rights legislation,[12] I do not find this case to have any binding weight for purposes of the present decision.

The applicant’s position is that the reference to “regulations which may be made by the Governor in Council for the purposes of this paragraph” merely indicates who must make the regulations; I disagree. It is a well known rule of statutory interpretation that words should not be added or deleted to arrive at a desired result. In Construction of Statutes,[13] Driedger cites the following passage by Chief Justice Davis in Grand Trunk Pacific Railway Co. v. Dearborn [(1919), 58 S.C.R. 315, at pages 320-321]:

I cannot admit the right of the courts where the language of a statute is plain and unambiguous to practically amend such statute either by eliminating words or inserting limiting words … 

Since the identity of the body empowered to make the regulations is disclosed without reference to the words “for the purposes of this paragraph”, these words must be assigned some meaning of their own.

The meaning of this phrase was considered by the Supreme Court of Canada in R. v. Nolan.[14] That case dealt with the question of whether a military police officer was a peace officer as defined in paragraph 2(f) of the Criminal Code[15] and therefore authorized to issue a breathalyzer demand to a civilian. The accused, a civilian, was seen driving out of a military base at excessive speed and was followed by two military policemen and detained on a public highway. Upon observing that the accused was staggering and had the strong smell of alcohol on his breath, the military police brought him to a police station and asked him to provide a breath sample. He refused and was charged with refusing to comply with a breathalyzer demand contrary to subsection 235(2) [as enacted by S.C. 1974-75-76, c. 93, s. 16] of the Criminal Code. At trial, the judge found that the military police officer was not a peace officer as defined in the Criminal Code.

Paragraph 2(f) of the Criminal Code contained the following:

2. In this Act

…

peace officer includes

…

(f) officers and men of the Canadian Forces who are

(i) appointed for the purposes of section 134 of the National Defence Act, or

(ii) employed on duties that the Governor in Council, in regulations made under the National Defence Act for the purposes of this paragraph, has prescribed to be of such a kind as to necessitate that the officers and men performing them have the powers of peace officers; [Emphasis added.]

The applicable regulation was found in the Queen’s Regulations and Orders for the Canadian Forces (1968 Revision), passed pursuant to subsection 12(1) of the National Defence Act [R.S.C. 1970, c. N-4] and amended by Order in Council P.C. 1976-1799, July 13 1976. It read as follows:

22.01—OFFICERS AND MEN—PEACE OFFICERS

…

(2) for the purposes of subparagraph (f)(ii) of the definition of “peace officer” in section 2 of the Criminal Code, it is hereby prescribed that any lawful duties performed as a result of a specific order or established military custom or practice, that are related to any of the following matters are of such a kind as to necessitate that the officers and men performing them have the powers of peace officers:

The language of the Regulation clearly contained a reference to subparagraph 2(f)(ii) of the Criminal Code. There was no doubt, therefore, that it was passed “for the purposes of this paragraph”, and there was thus no need for the Court to actively turn its attention to the appropriate meaning of these words. However, given the respondent’s submission on the proper interpretation of subparagraph 2(f)(i), the Court did engage in a more extensive analysis which is relevant to subparagraph 2(f)(ii) as well.

Dickson C.J. held that the words “for the purposes of section 134 [as enacted by S.C. 1972, c. 13, s. 73.1] of the National Defence Act” must mean something. He stated, at pages 1225-1226:

Like Andrews J. of the British Columbia Supreme Court, I am convinced that the words in s. 2(f)(i), “appointed for the purposes of section 134 of the National Defence Act” must indeed “mean something”. The respondent Crown submits that “for the purposes of section 134” means nothing more than “under section 134”. The reference is simply to describe those members of the Armed Forces—military police—who are “peace officers” within the meaning of s. 2(f)(i). No limitation of authority is implied. I cannot not agree with that interpretation. Section 2(f)(i) of the Code speaks of the purposes of s. 134, not merely of the group defined by s. 134. [Emphasis added.]

Later, on pages 1226-1227, Dickson C.J. concluded by stating:

In this context, it is difficult to imagine that the words in s. 2(f)(i), “for the purposes of section 134 of the National Defence Act” are not to be treated as words of limitation.

In the present case, Q.R.&O. 15.17 and 15.31 contain no indication that they were made for the purposes of paragraph 15(b) of the Canadian Human Rights Act. This conclusion is strengthened by the fact, as pointed out by the Tribunal and not contested by the applicant, that they were passed prior to the enactment of this section.

Consequently, I find that paragraph 15(b) does not apply to Q.R.&.O. 15.17 and 15.31 and that the Tribunal committed no error in law on this question. I need not, therefore, decide on the constitutionality of this section.

In the event, however, that the Tribunal did in fact err regarding this question, I would like to make the following comment. Given the recent decision of the Federal Court of Appeal relative to these proceedings to the effect that I have the jurisdiction on a judicial review to decide a constitutional issue not decided by the Human Rights Tribunal,[16] a significant difficulty emerges with respect to the justification section of the Charter. A section 1 analysis requires evidence indicating the intention of Parliament when it adopted paragraph 15(b) in order to determine whether it was a reasonable limit on the guaranteed rights and freedoms in question. Unfortunately, given the fact that the Tribunal did not decide the Charter issue, it was not before this Court in such a manner and quality that might enable me to try it with an acceptable degree of decisiveness.[17]

This problem was recognized by Estey J. in Law Society of Upper Canada v. Skapinker[18] in which he stated, at page 384:

As experience accumulates, the law profession and the courts will develop standards and practices which will enable the parties to demonstrate their position under s. 1 and the courts to decide issues arising under that provision. May it only be said here, in the cause of being helpful to those who come forward in similar proceedings, that the record on the s. 1 issue was indeed minimal, and without more, would have made it difficult for a court to determine the issue as to whether a reasonable limit on a prescribed right had been demonstrably justified. [Emphasis added.]

2)         DO Q.R.&O. 15.17 AND 15.31, THE OCDP AND THE ORCDP CONSTITUTE A BONA FIDE OCCUPATIONAL REQUIREMENT UNDER SECTION 15(a) OF THE Canadian Human Rights Act?

Paragraph 15(a) of the Canadian Human Rights Act provides:

15. It is not a discriminatory practice if

(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement.

The seminal authority on the meaning of the bona fide occupational requirement (BFOR) is the Supreme Court of Canada decision in Ontario Human Rights Commission et al. v. Borough of Etobicoke,[19] where the Court considered whether or not a policy of mandatory retirement of fire fighters at age 60 constituted unlawful discrimination on the grounds of age. McIntyre J. set out the test in this oft-repeated paragraph, at page 208:

To be a bona fide occupational qualification … a limitation, such as 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 would 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.

The test posits two limbs, both of which are to be proven by the employer. The first is that the employer’s motives, measured subjectively, for implementing the work rule must be to assure the “efficient and economical performance of the job.” The second is an objective inquiry as to whether the limitation is “reasonably necessary” for achieving this legitimate purpose.

The objective component of the test has evolved considerably since 1982. Two major elements have emerged, they are the requirements of rationality and proportionality of the employer’s policies. Beetz J. in Brossard examined “reasonable necessity” on this basis, at pages 311-312:

(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. In Etobicoke, for example, physical strength evaluated as a function of age was rationally connected to the work of being a fireman.

(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 sixty-year mandatory retirement age in Etobicoke was disproportionately stringent, for example, in respect of its objective which was to ensure that all firemen have the necessary physical strength for the job.

The applicant has suggested that the test to determine whether an occupational requirement is bona fide has been modified recently by the Supreme Court of Canada in Dickason v. University of Alberta.[20] In that case, the wording of section 11.1 of the Individual’s Rights Protection Act[21] of Alberta and of section 1 of the Charter were so strikingly similar that the Court felt it appropriate to approach the analysis of section 11.1 in a manner consistent with that set out in R. v. Oakes.[22] That is not, however, the case here.

Even if, as the applicant submitted, both tests contain similar elements, I hesitate to depart from that enunciated in Etobicoke and often confirmed by the Supreme Court of Canada. The BFOR test was developed in the particular context of employment whereas section 1 is a general provision that applies to all rights guaranteed by the Charter. This distinction was emphasized by McIntyre J. in Andrews v. Law Society of British Columbia[23] when he stated, at page 176:

Where discrimination is forbidden in the Human Rights Acts it is done in absolute terms, and where a defence or exception is allowed it, too, speaks in absolute terms and the discrimination is excused. There is, in this sense, no middle ground. In the Charter, however, while s. 15(1), subject always to subs. (2), expresses its prohibition of discrimination in absolute terms, s. 1 makes allowance for a reasonable limit upon the operation of s. 15(1). A different approach under s. 15(1) is therefore required. While discrimination under s. 15(1) will be of the same nature and in descriptive terms will fit the concept of discrimination developed under the Human Rights Acts, a further step will be required in order to decide whether discriminatory laws can be justified under s. 1. The onus will be on the state to establish this. This is a distinct step called for under the Charter which is not found in most Human Rights Acts, because in those Acts justification for or defence to discrimination is generally found in specific exceptions to the substantive rights.

The following, then, is the application of the BFOR test to the retirement policies of the CAF.

I           The First Branch: The Subjective test

As mentioned in the decision of the Tribunal, there is no issue in this case pertaining to the subjective branch of the test; the mandatory retirement policies of the CAF were imposed in good faith based on the belief that they were necessary to the overall effectiveness of the Forces.

II          The Second Branch: The Objective test

A)        Defining the Objectives of the Employer in Relation to the Employment Policy (Mandatory Retirement) of the CAF.

The study conducted by the CAF entitled The Requirement for Mandatory Retirement from the Regular Forces considered the need for such a policy in the context of the Canadian military. The conclusions drawn by the CAF were based upon the particular objectives of that organization, objectives which were defined in the following terms, at page 3:

Military effectiveness cannot be quantified scientifically. It is the result of the combination of circumstances, equipment and personnel. Personnel contribute to military effectiveness by their physical, mental and emotional capacity, professional training and experience, and most importantly by their morale, or their willingness to meet the risks and hardships that attend an unlimited liability to serve…. In summary, in personnel terms, military effectiveness is characterized by flexibility, by the availability of capable, disciplined and well-trained members at the right place at the right time, and by a readiness to face the hazards and harsh conditions of military operations.

For the purposes of the present analysis, this overall objective of military effectiveness will be divided into its structural/organizational and safety/medical components.

(i)         Structural/Organizational Objectives:

The OCDP and ORCDP were developed, according to the applicant, as a means to maintain a cohesive and effective peacetime military. To be operationally effective, the CAF requires a steady flow through of personnel from the lower ranks upward; flexibility in the management of that career progression in order to meet the changing needs of the forces; predictability for the purposes of resource allocation and the development of pension plans; and generally, greater control over its internal structure.

There is a clearly defined hierarchical rank structure for both officers and non-commissioned members. With rare exceptions, members are enrolled at the bottom of the rank structure applicable to their military occupation and, based on their experience, performance and merit, these members are eligible for varying career opportunities. It is thus important to achieve the orderly development of members from lower ranks to enable them to assume leadership functions at more senior rank levels. It is also crucial to sustain a balance between youth and experience.

The CAF identified problems which were hampering its organizational integrity and which required the existence of “release or safety valves” for easing personnel out when and where necessary. These problems included slow promotion and rank stagnation; high and unforecasted attrition rates, particularly among ROTP personnel after the end of obligatory service; dissatisfaction arising from the penalties imposed on pension benefits because of early retirement; and poor age and rank distribution (the so-called “bubble effect” where there is blockage in the flow of personnel entering certain ranks and occupations or a sudden dearth of qualified candidates to replace those who retire). The structural objectives of the CAF necessarily involve solving these difficulties as well.

(ii)        Safety/Medical Objectives:

The CAF requires that every member be at all times trained and prepared for war, even those fulfilling a support function; this is the “soldier first” principle. Military operations are inherently risky and demand physical strength, agility, speed, resilience and endurance on the part of the individual soldier. The aging process, however, has a deteriorating effect on the physical strength and abilities of persons and results as well in an increased susceptibility to disease, illness and morbidity. This process of deterioration is irreversible and permanent. It is thus important, in the interests of maintaining the necessary fitness standard in the military, to retire personnel at a certain age.

B)        Is there a Rational Connection between these Objectives and the Mandatory Retirement Policy?—The Test of Rationality

In order to meet the test of rationality, the means used by the CAF (in this case the CRA of 55) must be rationally connected to its objectives. They must be reasonably necessary to achieving those ends, not just administratively convenient; and they cannot be the product of mere impressions, stereotypes or unsubstantiated generalizations. In Etobicoke, for example, the Court held that “impressionistic” evidence from professional fire fighters to the effect that fire fighting is a “young man’s game” was insufficient to establish a BFOQ. McIntyre J. stated, at page 212:

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….

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”. [Emphasis added.]

In those situations where empirical evidence cannot be produced, the courts have displayed a preference for “objective assessments” over “subjective impressions”.[24]

This requirement of a rational connection must be met in relation to both objectives of the CAF.

(i)         Structural/Organizational Objectives:

The Tribunal does not dispute the fact that the structural objectives of the CAF are rational. Factors such as rank stagnation, poor flexibility in responding to changing needs and low morale are serious in the context of an organization whose prime directive is to prepare for and be able to respond to situations of conflict. The real question, however, is whether the connection between the means used (the CRA) and the objectives is a rational one.

Support for the submission that mandatory retirement is necessary to achieve the flow of personnel upon which the health of an organization like the CAF depends can be found in McKinney v. University of Guelph.[25] In that case, La Forest J. concluded, at page 284 that the mandatory retirement policy of the University was reasonably necessary in that it:

 … not only supports the tenure system which undergirds the specific and necessary ambience of university life. It ensures continuing faculty renewal, a necessary process to enable universities to be centres of excellence. Universities need to be on the cutting edge of new discoveries and ideas, and this requires a continuing infusion of new people. In a closed system with limited resources, this can only be achieved by departures of other people. Mandatory retirement achieves in an orderly way that permits long-term planning both by the universities and the individual.

In contrast, Wilson J. noted in Stoffman v. Vancouver General Hospital,[26] a case involving the mandatory retirement of physicians at age 65, that the evidence did not support the contention that the retirement of older physicians would ensure promotion opportunities for younger physicians. The Court concluded that the maintenance of hospital privileges would not prevent other physicians from gaining admitting privileges and that, therefore, the retirement policy was not reasonably necessary.

In my opinion, the case at bar more closely resembles the situation in Stoffman in that the maintenance of personnel past the standard age of retirement would not have a significant impact on the career opportunities of younger members. The evidence indicates that a 10% turnover in personnel is necessary in order to meet the structural requirements of the CAF. The Tribunal did not reject this figure, but rather focused on the fact that the overall proportion of this required turnover attributable to the CRA policy itself is only 1%, and of this number only a small percentage would choose to stay on if mandatory retirement were abolished (evidence of Brigadier Stephenson, Director, Manpower Utilization for the CAF, volume 1 of the applicant’s record, at page 261). The evidence also reveals that the number of individuals affected by mandatory retirement is small relative to the 85,000 members presently serving in the CAF. The ten-year average between 1980 and 1990 of individuals leaving the military because they had reached their CRA was a mere 751 per year (volume 1 of the applicant’s record, at page 254).

The Armed Forces might indeed constitute a “closed system” with finite resources, but the proportion of those resources that is allocated to the relatively small number of members who might choose to stay on past the standard retirement age is not significant. In this light, the decision that the CRA is not reasonably necessary to attaining the objectives of the CAF is a valid one.

In coming to this conclusion, the Tribunal did not underestimate the ratio in McKinney. The type of connection identified by the Court between the tenure system and the mandatory retirement age does not exist in the CAF. In McKinney, the tenure system was seen as fostering the freedom necessary for the maintenance of academic excellence. That system depended on the lowest possible level of interference and evaluation in the performance of professors. This was made possible by the setting of a mandatory retirement age without which:

 … the imposition of a stricter performance appraisal system might be required. It would be fraught with many difficulties, and would probably require an assessment by one’s peers or by outside experts.[27]

In the present circumstances, however, the organizational effectiveness of the CAF is not as tightly bound up with mandatory retirement. The elimination of the CRA would not provoke a radical shift in the way personnel circulates within the organization such as that which might have occurred in the university context were mandatory retirement abolished.

The applicant also maintained that the Tribunal erred in failing to recognize that current pension entitlements are tied to mandatory retirement and that the pension scheme compliments the current retirement policy. In my opinion, the Tribunal was again correct in its conclusion. There is no evidence in the record which demonstrates that the pension scheme and the mandatory retirement policy are somehow intimately connected in the way the tenure system and mandatory retirement were linked in McKinney. The only mention of a connection is a bald assertion to this effect by the solicitor for the applicant to the chairman of the Tribunal.[28]  Further, there was insufficient evidence before the Tribunal regarding the consequences of the elimination of mandatory retirement on the pension scheme to enable it to draw any reasonable conclusions.

(ii)        Safety/Medical Factors

When the objectives of the employer relate to issues of health and safety, the adjudicating body must assess the risk factor in determining whether the means are rationally connected with the objectives. In the present case, however, the Tribunal recognized the risk factors in the military context arising from the aging process and agreed that the effects of aging on people raised sufficient concerns about the risk involved.[29]

There is little doubt that the requirement in the CAF for physically fit personnel who are at all times trained and prepared for war is a rational objective and directly tied to the prime directive of that organization. It is also acknowledged that mandatory retirement is rationally connected to this end; in other words, that the age of CAF personnel is related in a rational way to the tasks that are required of them and to the harsh conditions they must sometimes endure. The Tribunal did not dispute the fact that advancing age causes a deterioration in the physical capacity of every individual, nor that it occasions an increased susceptibility to illness, disease or morbidity. Given the demands placed upon members of the CAF, even those in non-combat support positions, it is reasonably necessary to develop some mechanism through which those individuals whose military effectiveness has been compromised by advancing age can be retired. The retirement of personnel at a set age is one option.

This brings us, in my view, to the central issue in this judicial review, and that is whether the Tribunal erred in concluding that although the CRA of 55 was rationally connected to the safety/medical objectives of the CAF, it was not ultimately necessary since the CAF was capable of developing and implementing tests which could accurately assess the fighting capability of its personnel. This raises the question of reasonable alternatives to a given employment rule which falls within the second part of the objective branch of the BFOR test—the requirement of proportionality.

C)        Are the Means Devised Sufficiently Tailored to the Objective and do they Impair as Little as Possible—the Test of Proportionality

Pursuant to the principle of proportionality, any measure that limits the rights of individuals guaranteed under human rights legislation must infringe upon those rights as little as possible. In that light it is necessary to consider whether there are any reasonable alternatives to the mandatory retirement policy which would attain the objective of a well-trained, combat-ready force. As Wilson J. stated in Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489, at pages 518-519:

In my opinion, this [the availability of alternatives] 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.

…

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 … as an alternative to a rule which on its face discriminated on the basis of age. [Emphasis added.]

In the case at bar, individual testing was the alternative explored by the Tribunal.

(i)         Individual Testing

In Saskatchewan (Human Rights Commission) v. Saskatoon (City),[30] Sopinka J. commented on the tension between an individualized approach to the BFOR section and an approach based on average characteristics. He stated, at page 1309:

The general philosophy of human rights legislation is that persons are not to be judged or dealt with on the basis of external characteristics such as race, age, sex, etc., but on individual merit. That is the general rule, and violation of it constitutes discrimination. As pointed out by McIntyre J. in Etobicoke, the defence of bona fide occupational qualification or requirement is an exception to the general rule. In the limited circumstances in which this defence applies, it is not individual characteristics that are determinative but general characteristics reasonably applied.

After reviewing the decisions in Bhinder et al. v. Canadian National Railway Co. et al., [1985] 2 S.C.R. 561,[31] in which the Supreme Court ruled against individual testing as the proper approach to exceptions under human rights legislation, and Air Canada v. Carson,[32] in which the Federal Court of Appeal was in favour of it, Sopinka J. set out, at pages 1313-1314 the proper approach to individual testing:

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.

It is important to consider what standard of proof should be applied to the determination of whether individual testing is a reasonable alternative “feasibility” or “possibility”. On the basis of the following jurisprudence, I conclude that “feasibility” is more the appropriate standard.

In Saskatoon, Sopinka J. wrote, at pages 1314-1315:

It was the role of the Board, admittedly a very difficult one given the complexity and divergence of medical views on the subject, to determine if individualized testing was feasible. The Board concluded that this was not the case. In my opinion, the Board correctly applied the law, found as a fact that there was no practical alternative available to the appellant, and concluded that in adopting the policy with respect to retirement at age sixty, the employer was acting reasonably. [Emphasis added.]

This standard of feasibility was echoed in Saskatchewan (Human Rights Commission) v. Moose Jaw (City)[33] when Sopinka J. effectively ruled that the Board erred in law when it concluded the city of Moose Jaw failed to displace the burden of showing that functional testing on an individualized basis was “impossible or highly impractical”.

In Zurich Insurance Co. v. Ontario (Human Rights Commission),[34] Sopinka J. applied this standard in the context of an insurance rate classification system and concluded that the Board imposed too onerous a burden upon Zurich Insurance when it stated that the company had to prove that the very essence of its business would be undermined if it could no longer rely on discriminatory group characteristics for its rate classification system. He stated the following, at page 350:

This standard ascribes too narrow a meaning to what constitutes a practical alternative. An alternative may be impractical even though its adoption would not undermine the very essence of the business.

In Central Alberta Dairy Pool, however, Wilson J. appeared to indicate that the standard is much higher than mere feasibility or practicability when she wrote, at page 513:

 … justification of a rule manifesting a group stereotype depends on the validity of the generalization and/or the impossibility of making individualized assessments. [Emphasis added.]

However, in light of the decision as a whole and of the case law on this topic, the proper interpretation of this excerpt should be tied to the underlying idea of reasonableness and practicability.

With respect to the case at bar, the Tribunal did not, in my opinion, impose too high a burden when it concluded that the CAF was capable of developing the necessary tests. Implied in its decision is the standard of “feasibility”, not “impossibility”.

(ii)        Feasibility of Individualized Testing

It is important to determine the feasibility of individual testing both in relation to assessing a given level of fitness and to detecting the diseases linked to aging that may prevent individuals from being operationally effective in times of greatest need.

The evidence indicates that testing in order to assess the level of fitness is feasible. It involves tailoring the standard exercise tests that include push-ups, sit-ups, hand grips as well as the VO2 Max test (which measures aerobic capacity) to this end (volume 4 of the applicant’s record, at page 1271).

Aerobic capacity is a good indicator of performance capacity and is in fact a better predictor of fitness levels than is age (volume 4 of the applicant’s record, at page 1250). The loss of performance capacity with age is inevitable, but it appears that this decline can be slowed considerably with the proper conditioning and life habits such that an older individual who is fit can possess greater endurance and a greater aerobic capacity than a younger individual. Therefore, the conclusion of the Tribunal that age per se is less important than other factors such as body composition, lean body mass, aerobic capacity, muscular strength and endurance in measuring the variance between individuals is not unreasonable.[35]

Since age is not the best indicator of the level of fitness of CAF members, it is not reasonable to exclude an entire sector of the Forces from employment solely on that basis. What is required in the realm of fitness is the implementation of a minimum standard to which all personnel must measure up.

While it is true that the CAF does not presently have minimal fitness standards in place, the evidence before the Tribunal shows that they had been developed but had not yet been implemented. This is revealed in the report submitted by the ergonomics research laboratory of Queen’s University which studied the standards developed by the Forces (volume 12 of the applicant’s record, at page 4773).

As well, the CAF has in place certain standards that are used as a minimum benchmark in specific situations. For example, yearly physical fitness tests are conducted in order to identify areas where fitness can be improved (volume 3 of the applicant’s record, at page 1146). The CAF also tests members prior to sending them out on particular missions. This usually involves a more intense scrutiny of the health of the individual in relation to the type of mission and the nature of the hardships that might be endured.

Finally, the CAF maintains medical categories of its personnel on the basis of which individuals with low medical classifications can be transferred to a less physically demanding post if their primary occupation permits. Four factors are used to evaluate members: the occupational “O” factor, the geographical “G” factor, the vision “V” factor and the hearing “H” factor. These factors, especially the occupational and geographic factors which deal with the nature of work and overseas postings, are involved in limiting the employment and deployment of personnel. Each factor is rated on a scale of 1 to 5, with a 3 indicating sufficient disability to cause some restriction or, depending on the primary occupation of the members, release from the Forces (a rating of O3, for example, signifies that the member is not suitable to be sent to war). Such a classification system by implication involves a minimum health standard.

With respect to the feasibility of testing for the effects of aging on susceptibility to disease, illness and morbidity, the evidence on the record does not support the applicant’s contention that individuals must be managed solely on the basis of statistical groups. The applicant relied for this assertion on the study conducted by the CAF which pointed out that while the fitness of its members could be monitored through observable medical characteristics, it was much more difficult to manage the various decrements in performance and health generally associated with age. Although regular Force members are subject to periodic medical exams, it was argued that these only indicate current medical status and offer no assurance of future condition or possible morbidity.

As mentioned in the decision of the Tribunal, of the major illnesses identified by the experts as relevant to the present context, only coronary artery disease (CAD) and stroke carry the risk of sudden incapacitation such that it would be important to be able to predict their occurrence with the greatest accuracy. The other diseases, such as diabetes, cancer and so on, are progressive in nature and are more readily detectable and manageable (volume 3 of the applicant’s record, at page 999).

The applicant submitted evidence to the effect that while the risk factors associated with CAD, such as gender, age, smoking and cholesterol levels, provide a statistical likelihood of how probable a CAD episode might be in an individual, they do not, unfortunately, enable one to predict whether an individual will or not have the disease. The same can be said with respect to stroke.

Concerning the tests used to detect CAD, such as the resting ECG, the exercise ECG, the thallium scan and the coronary arteriograph, the applicant argued that they are inaccurate as predictors or detectors, expensive and risky. I disagree with these submissions for the following reasons.

The evidence demonstrates that in an asymptomatic population, the exercise ECG, for instance, can achieve a negative specificity of 90% or more, which means that there is a 90% chance that a person will not have CAD if the test is negative. And given the available evidence which suggests that asymptomatic 55-year-old males, for example, have a 10% occurrence rate for CAD, this reduces the likelihood of having undetected CAD to approximately 1% of those tested (volume 3 of the applicant’s record, at pages 830-1002).

Even though the positive ECG test has a specificity of only 50%, in other words, that in only half the cases will the asymptomatic individual actually have the disease when the test is positive, this is not as relevant as negative specificity for the purposes of weeding those people out who represent a safety risk to themselves and their co-members.

The overall accuracy of the testing regime rises significantly with a symptomatic population. In the presence of symptoms such as a high cholesterol, the positive predictive value of the ECG test jumps from 50% to 90%. The thallium scan has an even greater specificity and is less risky than the ECG (volume 3 of the applicant’s record, at pages 830-1002).

Of all symptoms that might assist in identifying individuals at risk, the evidence suggests that a person’s cholesterol level is an indispensable indicator. If it is below 150, the evidence reveals that there is little chance of a heart attack, regardless of what the other risk factors are. Also, the cost of such a test is low as is the risk (volume 4 of the applicant’s record, at pages 1360-1403).

With respect to the cost of testing beyond the initial screening for symptoms, the evidence reveals that it is reasonable. The resting ECG is a routine part of the medical exam for U.S. Army members over the age of 40. The cost of such a test in a physician’s office is in the range of $25 to $50. The more intensive exercise cardiogram is used by the U.S. military if the person is at high risk of a heart attack because of the risk factors and symptoms. High risk is defined as 5% to 10% probability of an attack in six years.

Though the thallium scan and the angiogram are more costly, their use can be restricted to the few individuals who, on the basis of a positive symptomatic scan such as an elevated cholesterol level or poor aerobic capacity, exhibit high risk characteristics. Overall, the number of individuals involved represents a small proportion of the CAF personnel (volume 4 of the applicant’s record, at pages 1458-1462).

CONCLUSION

The Tribunal found as a fact that individual testing was feasible. The jurisprudence indicates, regarding the review of the findings of fact of administrative tribunals, that they will not be disturbed unless they are capricious, perverse or made without regard to the evidence.[36] Since there was sufficient evidence before the Tribunal to support its decision, such a characterization cannot be imposed in the circumstances at bar. It was therefore reasonable for the Tribunal to conclude that the mandatory retirement policy of the Canadian Armed Forces was not a bona fide occupational requirement pursuant to paragraph 15(a) of the Canadian Human Rights Act.

As mentioned earlier, I also conclude that the Tribunal committed no error in deciding that paragraph 15(b) of the Canadian Human Rights Act was not applicable to the case at bar.

For the foregoing reasons, the application for judicial review shall be dismissed.

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