A-821-91
The Attorney General of Canada (Applicant)
v.
Clarence Levac and Canadian Human Rights
Commission (Respondents)
INDEXED AS? CANADA (ATTORNEY GENERAL) V. LEVAC (C.A.)
Court of Appeal, Marceau, Desjardins and Décary
JJ.A.—Montréal, April 29 and 30; Ottawa, July 8,
1992.
Human rights — S. 28 application to set aside decision of
Canadian Human Rights Tribunal under Canadian Human
Rights Act — Respondent released from employment for medi
cal reasons — Tribunal declaring Armed Forces engaged in
prohibited discriminatory practice in refusing to continue to
employ respondent — Prima facie case of discrimination —
Applicant's main allegation based on denial of right to fair
hearing rejected — No strict duty on Court to entertain new
submissions if decision released by higher Court which may
have altered law — Reopening of hearing discretionary matter
— S.C.C. judgment in Central Alberta Dairy Pool v. Alberta
(Human Rights Commission) not creating fundamental change
in law — Applicant estopped by own conduct from alleging
violation of rules of natural justice — Respondents' medical
evidence more convincing — Tribunal correctly finding medi
cal BFOR not justified.
Judges and courts — S.C.C. releasing judgment said to fun
damentally change law prior to Human Rights Tribunal decid
ing employment discrimination case — Whether natural justice
breached as Tribunal not granting parties opportunity to pre
sent new arguments, evidence — Courts, tribunals never under
strict duty to entertain further submissions where higher court
decision, rendered after hearing, could influence deliberations
— Matter of discretion in absence of request by parties.
This was a section 28 application to set aside a decision ren
dered by a Canadian Human Rights Tribunal under the Cana-
dian Human Rights Act, declaring that the Canadian Armed
Forces engaged in a prohibited discriminatory practice in
refusing to continue to employ the respondent, Clarence
Levac. After nearly 30 years of service with the Forces, the
latter was forcibly released from his employment for medical
reasons based on a heart deficiency detected during a routine
medical examination. He alleged before the Canadian Human
Rights Commission that his release had been imposed on the
basis of a prohibited ground of discrimination under the Act,
namely physical disability, while the Forces' position was that
Levac had been released by virtue of a bona fide occupational
requirement (BFOR) within the meaning of paragraph 15(a) of
the Act. The Tribunal did not accept the Forces' response to
the complaint, holding that there had been discrimination
under the Act. Applicant's main ground of appeal against the
Tribunal's decision was that the Forces had been denied the
right to a fair hearing. More specifically, it was argued that the
Tribunal could not render a decision based, in part, on the
judgment of the Supreme Court of Canada in Central Alberta
Dairy Pool v. Alberta (Human Rights Commission), rendered
after the hearing had been closed, without reopening the hear
ing. The issue before this Court was whether the Tribunal was
correct in not reopening the hearing after the release of the
judgment of the Supreme Court and in rejecting the Forces'
defence based on a bona fuie occupational requirement.
Held (Desjardins J.A. dissenting), the application should be
dismissed.
Per Marceau J.A.: Applicant's main submission based on
natural justice must be rejected. A tribunal or a court can never
be under a strict duty to entertain new submissions from parties
to litigation because a decision of a higher court handed down
after the hearing could influence its deliberation. It is a purely
discretionary matter. Moreover, applicant's view that the
Alberta Dairy Pool decision signifies a fundamental change in
the law was untenable. If there is something new in that judg
ment, it is in the clarification it gives to the meaning and scope
of some of the notions around which human rights legislation
and case law have evolved. Wilson J. pointed out that the bona
fuie occupational requirement contemplated by the federal and
all provincial statutes as a defence against a complaint of dis
crimination in employment was not meant to refer to any work
rule, but only to a rule requiring of employees special personal
characteristics related to one of the prohibited grounds of dis
crimination. There was another way in which the Alberta
Dairy Pool judgment might be considered somewhat innova
tive. Until now, to be justified, a bona fide occupational
requirement had to be, as expressed in another Supreme Court
case, Ontario Human Rights Commission et al. v. Borough 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". From
now on it must be, not only "reasonably", but absolutely neces
sary, that is, it must be without any other workable, less strin
gent, alternative. Members of the Tribunal found that the
Forces could not excuse their discriminatory act by placing it
under an alleged medical bona fide occupational requirement
because that requirement, in its inflexibility and generality,
was not justified. Their approach in dealing with the case and
the principles they followed in reaching their main conclusion
were correct and there was no reason for the Tribunal to reopen
the hearing.
Per Décary J.A.: With respect to the main argument raised
by the applicant, namely denial of a fair hearing, the Attorney
General did not, at any time during the relatively long period
between the date that the Supreme Court delivered its judg
ment in Alberta Dairy Pool and the time when the Tribunal
rendered its decision, seek to reopen the hearing. This was not
a case of a party being denied an opportunity to debate a fun
damental change in the law, but rather one of a party being so
unconvinced that there had been a fundamental change as a
result of a recent decision, that it did not bother to seek leave to
reopen the hearing. The conduct of the applicant estopped her
from alleging violation of the rules of natural justice.
With respect to the secondary argument raised by the appli
cant, whether the Tribunal was correct in rejecting the Forces'
defence, it cannot be said that the Tribunal erred in a review-
able way in its assessment of the evidence or reached a conclu
sion that it could not reasonably reach. The medical evidence
adduced by the applicant as to Levac's heart condition was
meager. Her principal medical expert did not at any time
examine Levac personally, but the respondents' medical expert
did. There being no evidence of a "sufficient risk", the Tribu
nal was entitled to uphold the complaint.
Per Desjardins J.A. (dissenting): The only question before
the Court was whether the Tribunal was correct in rejecting the
Forces' defence. Since the parties have recognized that the
case at bar is one of direct, as opposed to indirect, discrimina
tion, no duty to accommodate arises in cases where a BFOR is
claimed since by definition an occupational requirement is job
related, not employee related. As to the objective component of
a BFOR, the real question was whether the requirement of a
clean bill of health free from a "heart condition" 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 respondent enjoyed sea duties so that the risk taking
was his. However, in doing so, he would also put at risk the
lives of others, since none of the rescue operations described
by the Forces' witness could be done without endangering the
lives of his fellow companions. Moreover, these operations
could only be carried out at considerable public expense. The
difficulty of this case is to appreciate what the Tribunal pre
cisely did when it assessed the evidence with regard to the
individual concerned. Once it accepted that there was "an ele
ment of risk" in sending the respondent to a sea posting, "as
compared to a person in excellent health", it erred in law in
assessing the degree of the risk so as to justify the application
of the discriminatory rule. The only conclusion available to it
was that the Forces were entitled to impose an arbitrary demar
cation line. As long as there was an element of risk, the
Forces' requirement of good health constituted a BFOR.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss.
3(1), 7(a), 15(a).
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Central Alberta Dairy Pool v. Alberta (Human Rights
Commission), [1990] 2 S.C.R. 489; (1990), 33 C.C.E.L. I;
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.
CONSIDERED:
Ontario Human Rights Commission and O'Malley v.
Simpsons-Sears Ltd. et al., [1985] 2 S.C.R. 536; (1985),
52 O.R. (2d) 799; 23 D.L.R. (4th) 321; 17 Admin. L.R.
89; 9 C.C.E.L. 185; 86 CLLC 17,002; 64 N.R. 161; 12
O.A.C. 241; 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; Brossard (Town) v. Quebec (Com-
mission des droits de la personne), [1988] 2 S.C.R. 279;
(1988), 53 D.L.R. (4th) 609; 88 N.R. 321; Saskatchewan
(Human Rights Commission) v. Saskatoon (City), [1989] 2
S.C.R. 1297; (1989), 90 CLLC 17,001.
APPLICATION under section 28 of the Federal
Court Act to set aside a decision of a Canadian
Human Rights Tribunal declaring that the Canadian
Armed Forces engaged in a prohibited discriminatory
practice in refusing to continue to employ the respon
dent. Application dismissed.
COUNSEL:
Alain Préfontaine and K Watkin for applicant.
René Duval for respondents.
SOLICITORS:
Deputy Attorney General of Canada for appli
cant.
Canadian Human Rights Commission, Legal
Services, Ottawa, for respondents.
The following are the reasons for judgment ren
dered in English by
MARCEAU J.A.: The decision under attack here was
rendered by a Canadian Human Rights Tribunal act
ing under the Canadian Human Rights Act, R.S.C.,
1985, c. H-6. It consists of a declaration that the
Canadian Armed Forces engaged in a prohibited dis
criminatory practice in refusing to continue to
employ the respondent, Clarence Levac.
The Facts
The basic facts that led to the decision are simple.
Mr. Levac, who had been employed by the Forces
since he joined the Royal Canadian Navy in 1955 at
the age of 17, was forcibly released from his employ
ment on February 26, 1984, for medical reasons. At
the time, Levac had attained the rank of Chief Petty
Officer First Class, the highest rank available to him
as a non-commissioned officer, and he was a
C-1/ER4 Chief Marine Engineer Artificer, his normal
responsibility as such being to manage the operation
and maintenance of the various power systems and
equipment aboard ships. The medical reasons
invoked referred to a heart deficiency detected during
a routine medical examination.
As Levac felt he was wrongly treated, he filed a
complaint with the Canadian Human Rights Commis
sion alleging that his release had been imposed on the
basis of a prohibited ground of discrimination under
the Act, namely, physical disability.
A three-member Tribunal held a hearing which
lasted four days. Levac's case was simple. He him
self testified that he had none of the symptoms asso
ciated with a heart condition; he had never suffered
from pain in the chest; he had never had any diffi-
cùlty in fulfilling his responsibilities; he felt perfectly
fit for his duties. And he had with him a renowned
cardiologist, Dr. Jean Gratton, who expressed the
view, on the basis of his examination and expertise,
that the narrowing of Levac's arteries diagnosed in
1979 was "minimal" and, in fact, corresponded to a
condition present in the majority of males over 40.
The Forces' response was understandably more
involved. Their position was that Levac had been
released by virtue of a bona fide occupational
requirement (a "BFOR") within the meaning of para
graph 15(a) of the Act, thus no illegal discrimination
had occurred. They pleaded, in effect, that: because
of the narrowing of his coronary artery, Levac was 8
to 12 times more likely to have a heart attack in the
next five years; Levac was due to go to sea during
those years in accordance with the normal sea to
shore roster applicable to those of his rank and duties,
a roster that, mainly for reasons of morale, it was
essential to leave intact; if Levac had a heart attack
while at sea, he had 2 to 3 times the chance of dying
than if he was in close proximity to a hospital, given
the limited medical facilities available on board some
ships, destroyers for example where Levac might
serve; and a seaman's death on board a ship
adversely affects his fellow crew psychologically,
and may cause undesirable interruption of the naval
operation then being conducted.
The Decision
The Tribunal did not accept the Forces' response to
the complaint; its conclusion was that there had been
discrimination under the Act. A detailed review of
the lengthy reasons it submitted in support of its deci
sion is not necessary; what must be carefully noted is
the approach it adopted in its reasoning and the
essential findings to which it came. Here is a quick
summary of those reasons.
After a complete review of the testimonies, the
members define the issues to be decided as follows
(at page 20 of the decision):
1) Did the Respondent's decision to forcibly release the
Complainant on medical grounds constitute a discriminatory
practice on a prohibited ground of discrimination, namely,
physical disability, in violation of section 7(1) [sic] of the
Act?
2) If answered in the affirmative, did the Respondent never
theless exculpate itself by successfully invoking the BFOR
Defence available to it under section 15(a) of the Act?
3) Was there, in any event, a legal obligation upon the
Respondent to reasonably accommodate the Complainant in
the face of the alleged adverse discriminatory effects upon
him as a result of Respondent's decision to terminate him,
without or up to the point of undue hardship?
4) Did the Respondent discharge such obligation?
The first issue, of course, does not raise any diffi
culty; no one could dispute that it was a prima facie
case of discrimination. The second issue gives rise to
a long discussion leading to the following central
finding and conclusion (at pages 25 and 26):
The Tribunal finds that the Respondent has not established
that Complainant cannot perform or be expected to perform
the job of Chief Petty Officer First Class or Marine Engineer
Artificer whether at sea or on shore or that being free from any
degree of coronary artery disease and projection or prediction
of a heart attack associated with this disease constitutes a bona
fide occupational requirement.
The Tribunal therefore concludes that the Respondent has
failed to discharge its burden of establishing a valid BFOR
defense in that it has not satisfied the bona fide occupational
requirement to the satisfaction of the Tribunal. We are not per
suaded that Complainant could not serve at sea, if that were to
occur, without danger or real risk to himself, his co-workers or
his employer the Respondent and the general public which it
represents. Nor, as we have already made clear, are we per
suaded that Complainant could not perform his duties on
Shore.
The third issue is introduced by the following com
ments (at page 27):
Notwithstanding the foregoing, in light of the most recent
Supreme Court Decision as it affects this case, Alberta Human
Rights Commission vs Central Alberta Dairy Pool, (Supra) as
yet unreported, there is, in any event, a legal obligation
imposed upon Respondent to take appropriate reasonable steps
to accommodate the Complainant, who was adversely affected
by Respondent's discriminatory practice, up to the point of
undue hardship.
The Tribunal considers the Respondent to have failed to dis
charge either of such legal obligations.
A quick statement settles the fourth issue (at page
28):
The Tribunal is convinced that the Respondent was in a
position to accommodate the Complainant vis-Ã -vis the impact
of the adverse discriminatory effects sustained by him in a
number of ways without undue hardship but failed to do so.
The Ground of Appeal
This review of the facts and of the content of the
decision is decidedly laconic, but I need not go any
further to deal with the only legal ground of attack
that I intend to address in these reasons. There were
other grounds raised. Counsel for the Attorney Gen
eral tried to question some of the findings of fact
made by the Tribunal but it quickly became clear dur
ing the hearing that this was to no avail, it being
already obvious to the Bench that none of those find
ings could be said to have been made in disregard of
the evidence. Counsel did not pursue these other
grounds except to give perspective to the sole ground
not merely based on the conclusions of fact.
The issue left to be addressed concerns natural jus
tice. The Attorney General claims that the Forces
were denied the right to a fair hearing. She submits
that the Tribunal could not render a decision based, at
least in part, on the judgment of the Supreme Court
in Central Alberta Dairy Pool v. Alberta (Human
Rights Commission), [1990] 2 S.C.R. 489, a judg
ment rendered after the hearing had been closed,
without reopening the hearing. She puts her argument
in this way in her factum:
63. When the law is changed as fundamentally as it was on
September 13, 1990 by the release of the landmark decision of
the Supreme Court of Canada in Alberta Human Rights Com
mission v. Central Alberta Dairy Pool, an adjudicative body
such as the Tribunal is under a duty imposed by natural justice
to grant to the parties before it the opportunity to debate
whether the landmark decision applies to their particular cir
cumstances and, if they wish to do so, to lead new evidence to
meet the new found requirements imposed upon them. Not to
do so constitutes a failure to afford a fair hearing which vitiates
the entire proceedings and renders the decision invalid.
64. A fair hearing entails that the parties to it know in advance
the issues they will have to address in argument and the evi
dence that must be led to support these arguments.
65. If the law is changed fundamentally while the decision is
under reserve, as is the case here, the only way by which the
Tribunal can afford a fair hearing to the parties is by granting
them the opportunity to present arguments and evidence.
66. It was specially important for the Tribunal to do so in this
case because this fundamental change made to the law has
important ramifications on the nature of the evidence needed to
address it. What constitutes a reasonable alternative or what
meets the Supreme Court's open-ended list of examples of
undue hardship is a question of fact for the determination of
the Tribunal which the parties must be given an opportunity to
address.
The Rejection of the Ground of Appeal
There is a short answer to the applicant's submis
sion. I do not think that a Tribunal or a Court can
ever be under a strict duty to entertain new submis
sions from the parties to a litigation because a deci
sion of a higher Court handed down after the hearing
could influence its deliberation. It may be useful and
more prudent to do so but it is, I believe, particularly
in the absence of any request by the parties, a purely
discretionary matter.
There is also a more complete answer. I simply
disagree with the applicant's view that the Alberta
Dairy Pool decision signifies a fundamental change
in the law. The basic idea in Madam Justice Wilson's
majority judgment, as I read it, is clearly set out in
the following passage of her reasons (at pages 514-
515):
Where a rule discriminates on its face on a prohibited
ground of discrimination, it follows that it must rely for its jus
tification 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 accommo
date 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 discrimina
tion 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 accommo
dation. The employer must take reasonable steps towards
that end which may or may not result in full accommoda
tion. 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 sacri
fice his religious principles or his employment. [Emphasis
added by Wilson J.]
There was nothing new in taking as a premise that,
under the Act, a qualifying rule for employment that
openly distinguishes between individuals on a pro-
hibited ground of discrimination could not be treated
in the same manner as a work rule which is neutral
on its face but may become discriminatory when put
in practice because of the personal characteristics of
some individuals in the group to which it is meant to
apply. Since the judgment in Ontario Human Rights
Commission and O'Malley v. Simpsons-Sears Ltd. et
al., [1985] 2 S.C.R. 536, where the Supreme Court
determined that intention to discriminate on the part
of the employer was not a requirement of any human
rights legislation and found as a result that indirect
discrimination or adverse effect discrimination was
also prohibited, the distinction has always been seen
as a starting proposition.
There was nothing new either in affirming that a
general rule, qualifying one for employment, that dis
criminates on its face had, of course, to be justified to
be accepted as a valid defence, but if so justified,
then there was no question of examining whether the
employer could not have suspended its effects in par
ticular instances. The very nature of the BFOR'
defence the employer draws from the existence of
such general discriminatory rule requires that it be so.
(See, more particularly, the comments of McIntyre J.
in Ontario Human Rights Commission et al. v. Bor
ough of Etobicoke, [1982] 1 S.C.R. 202; and Bhinder
et al. v. Canadian National Railway Co. et al., [1985]
2 S.C.R. 561, and those of Beetz J. in Brossard
(Town) v. Quebec (Commission des droits de la per-
sonne), [1988] 2 S.C.R 279.)
Finally, there was nothing new in reiterating the
principle that, in the case of a neutral work rule caus
ing adverse effect discrimination, the employer has a
duty to accommodate the discriminated members of
the group to which it applies, short of undue hard-
I take it from the reasons of Wilson J., at pp. 502-503, that
BFOR and BFOQ (qualification) are equivalent concepts.
ship. Indeed, the extension in O'Malley of the statu
tory prohibition to indirect discrimination was made
with a necessary qualification. It was said that the
employer could exonerate himself by showing that
the impugned work rule had no purpose other than
achieving a valid goal connected with the employ
ment and that reasonable steps to accommodate the
employees adversely affected because of their special
personal characteristics had been taken.
If there is something new in the Alberta Dairy
Pool judgment, it is, I think, in the clarification it
gives to the meaning and scope of some of the
notions around which human rights legislation and
case law have evolved. The major part of Wilson J.'s
comments is aimed at making the point that the bona
fide occupational requirement or qualification con
templated by the federal and all provincial statutes as
a defence against a complaint of discrimination in
employment was not meant to refer to any work rule,
but only to a rule requiring of employees special per
sonal characteristics related to one of the prohibited
grounds of discrimination. Which, in effect, seems to
be in strict conformity with the expression `occupa-
tional requirement or qualification" and the fact that
the defence it provides to the accusation is unquali
fied. Wilson J. puts in a completely different category
those work rules which have nothing to do with the
personal characteristics of the employees, such as
rules respecting the manner of dress, hours of work,
break periods and the like. When the discrimination
that could result from their application was found, in
O'Malley, to be prohibited, not expressly for sure, but
by the general provisions and intent of the statute (in
that case, the Ontario Act did not at that time even
provide for the defence of BFOQ), it was, as we were
reminded above, with the qualification that no liabil
ity would exist if the employer had made his best
effort to accommodate. There, and there only, exists a
duty to accommodate. It is on the basis of these con
ceptual clarifications that Wilson J. expressed her res
ervations with regard to the Bhinder judgment. The
"hard hat rule" in Bhinder was not a BFOR but a
classical work rule with a possible adverse discrimi
natory effect, similar to the one in O'Malley, and
therefore a duty to accommodate should have been
automatically imposed on the employer.
These precisions as to the limited scope of the
BFOR defence in section 15 of the Act and the criti
cism addressed to the Bhinder decision as a result
may clarify some concepts but does not change the
law. In any case, they obviously do not directly bear
on the case at bar since the Forces' defence here was
based directly on section 15, the rule invoked being
clearly and unequivocally an occupational require
ment that is directly discriminatory on its face.
I am prepared to admit that there is also another
aspect on which this Alberta Dairy Pool judgment
may be considered somewhat innovative, at least
indirectly, particularly if the reasons of the minority
are read in conjunction with those of the majority. It
may have rendered the defence of BFOR even less
available than previously. Until now, the prevalent
view, I believe, was that, to be justified, a bona fide
occupational requirement had to be, as expressed in
Etobicoke (at page 208), "reasonably necessary to
assure the efficient and economical performance of
the job without endangering the employee, his fellow
employees and the general public". It seems from
now on that it must be, not only "reasonably", but
absolutely necessary, that is, it must be without any
other workable, less stringent, alternative. However,
this step forward, if it must be acknowledged, had
been prepared by the judgments in Brossard and in
Saskatchewan (Human Rights Commission) v. Saska-
toon (City), [1989] 2 S.C.R. 1297. Some may even
see, in this Alberta Dairy Pool judgment, indications
that the alternative to the general rule can incorporate
possible exceptions or individualized assessments, a
view taken by the minority here and certainly not
repudiated by the. majority. 2 If so, then the judgment
would have introduced, with respect to a BFOR, a
notion not completely alien to a duty to accommo
date, thereby, ironically, rendering almost meaning
less and irrelevant the distinction between a rule of
aptitude or qualification discriminating on its face,
and a simple work rule having some adverse effect
discrimination.
This last observation may explain why the Tribu
nal, even after having declared unjustified the BFOR
alleged by the Forces, extended its review to assert
that the Forces had failed to discharge their legal
obligation to accommodate the complainant. It is
obvious, however, that this last part of their decision
was completely superfluous and in no way required
by what can perhaps be seen as a novelty in the
Alberta Dairy Pool decision.
Basically, the Tribunal found that the Forces could
not excuse their discriminatory act by placing it
under an alleged medical bona fide occupational
requirement because that requirement, in its inflexi
bility and generality, was not justified. Their
approach in dealing with the case and the principles
they followed in reaching their main conclusion were
correct and in no way established by the Alberta
Dairy Pool decision. From the very beginning, the
Forces knew the case they had to meet. There was no
reason for the Tribunal to reopen the hearing.
The application, in my view, should be dismissed.
2 At p. 513, Wilson J. states as follows:
Thus, justification of a, rule manifesting a group stereo
type depends on the validity of the generalization and/or
the impossibility of making individualized assessments.
The following are the reasons for judgment ren
dered in English by
DESJARDINS J.A. (dissenting): A Canadian Human
Rights Tribunal appointed under the Canadian
Human Rights Act 3 has maintained a complaint of
alleged discriminatory practice contrary to paragraph
7(a) of the Canadian Human Rights Act against the
Canadian Armed Forces (the "Forces") by Clarence
Levac (the "respondent") who was forcibly released
from his position with the Forces. This section 28
[Federal Court Act, R.S.C., 1985, c. F-7] application
was brought so as to attack the declaration that was
issued by the Tribunal.
The facts
The respondent, born on February 27, 1938, joined
the Canadian Armed Forces (Navy) in 1955 as an
ordinary seaman and began his service as a stoker-
mechanic. At the time of his release from employ
ment in 1984, Clarence Levac had attained the rank
of Chief Petty Officer First Class, the highest rank
available to him as a non-commissioned officer. In
term of his trade qualifications, he was a Chief
Marine Engineer Artificer which was also the highest
qualification attainable in his trade. He had served
aboard a C.A.F. destroyer, the HMCS Margaree. His
duties were primarily supervisory. His occupation is
described in the service as a "hard sea trade" because
the pattern of scheduling his duties requires that he
serve both at sea and on shore. A number of sea and
shore duties had already been scheduled for him. In
fact, the respondent preferred sea postings to shore
postings 4
During a routine medical examination carried out
in early 1979, the respondent was diagnosed as hav
ing a "heart problem" which led to further examina
tions as a result of which he was declared by the
Career Medical Review Board as being unfit to con
tinue his military service with the Forces. He
3 R.S.C., 1985, c. H-6.
4 A.B., at p. 68.
received official notification of his release on March
18, 1982. 5 At the time, he was on an on-shore assign
ment as a quality control inspector and chief of the
detachment of technical service, at Vickers in Mon-
tréal. Although he was ordered to be released effec
tive August 8, 1983, he was retained at Vickers as a
member of the Forces until February 26, 1984.
The decision under attack
The Human Rights Tribunal was satisfied that the
respondent had made out a prima facie case of dis
crimination against the Forces under subsection 3(1)
and paragraph 7(a) of the Canadian Human Rights
Act, namely physical disability. 6 The question was
then whether the defence presented by the Canadian
Armed Forces, based on paragraph 15(a) of the Act, 7
was of any substance. The Tribunal stated the issue in
the following terms: 8
... did the Respondent nevertheless exculpate itself by suc
cessfully invoking the BFOR Defence available to it under sec
tion 15(a) of the Act?
The essence of the Forces' defence was that no dis
crimination occurred because the respondent was
released by virtue of a bona fide occupational
requirement (BFOR). Mr. Levac, it was said, was no
longer fit for service because of a risk of employee
failure. His medical condition precluded him not only
from being posted to sea, but also to any station or
base without adequate medical facilities.
5 Ibid., at p. 661.
6 3. (1) For all purposes of this Act, race, national or ethnic
origin, colour, religion, age, sex, marital status, family status,
disability and conviction for which a pardon has been granted
are prohibited grounds of discrimination.
7. It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any indivi
dual, or
7 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 occu
pational requirement;
8 A.B., at p. 1252.
The medical evidence before the Tribunal was con
flicting. The respondent's physician, Dr. Jean Grat-
ton, a cardiology specialist, offered the opinion that
the lesions which appeared to exist on the respon
dent's cardiogram were only minimal and were
reflected in the majority of men over forty years of
age. Dr. Gratton was of the opinion that the respon
dent could fulfill all of the conditions of his employ
ment with the Forces for a long period of time. Lt.
Col. Henryk P. Kafka, a cardiologist for the Forces,
suggested that the respondent faced a "risk of some
sudden unpredictable event". While Lt. Col. Kafka
conceded that the respondent had "a good progno
sis", 9 he was of the view that the respondent repre
sented a "significantly higher risk than someone who
is completely normal". He took the position that the
respondent's overall condition made him an unac
ceptable risk to serve at sea or at any station or base
without adequate medical facilities. Dr. René Mau-
rice Bélanger, Commandant of C.A.F. Medical Ser
vices School, was also concerned about the respon
dent's health condition for a sea posting. His concern
did not extend to on-shore duty unless the respondent
was placed in an isolated posting. 10
The Board concluded that the respondent was in
any event fit and able to perform his duties at a shore
posting such as the one he was fulfilling at the date of
his release. With regard to a sea posting, it stated: 11
The Tribunal accepts that there was an element of risk that
would be attached to sending the Complainant with a "heart
condition" out to sea, if indeed that were to occur, as compared
to a person in excellent health. However, the Tribunal does not
consider, on the basis of the medical evidence as a whole, that
the prediction of a risk of a heart attack of between 8 to 10%
within 5 years (or 6 to 9% within 3 years based upon CASS
criteria) when balanced against the substance of the other med
ical evidence as to Complainant's medical condition and his
prognosis, is real or of sufficient weight to legally justify the
9 A.B., at pp. 1239 and 1256.
10 Ibid., at p. 1251.
H Ibid., at p. 1257.
application of a discriminatory rule or practice which is abhor
rent and offends against the Act.
The Tribunal is convinced that the projection of a risk of
heart attack is still only one of the factors to be taken, into
account in determining whether the Respondent has estab
lished that the Complainant cannot perform or be expected to
perform his job either at sea or on shore given such dire pre
diction. Furthermore, it must be stressed that a risk factor in
and by itself is not a disease or disability. Many other factors
which have already been noted above mitigate in favour of
Complainant and lead the Tribunal to the conclusion that the
Respondent has not established that it was reasonably neces
sary for it to have excluded and released Complainant from its
employ and service in order to eliminate or avoid a real risk of
serious damage to Complainant, his co-workers or the public at
large.
The Tribunal finds that the Respondent has not established
that Complainant cannot perform or be expected to perform
the job of Chief Petty Officer First Class or Marine Engineer
Artificer whether at sea or on shore or that being free from _Ex
degree of coronary artery disease and projection or prediction
of a heart attack associated with this disease constitutes a bona
fide occupational requirement. [My emphasis.]
It concluded thus: 12
... that the Respondent has failed to discharge its burden of
establishing a valid BFOR defense in that it has not satisfied
the bona fide occupational requirement to the satisfaction of
the Tribunal. We are not persuaded that Complainant could not
serve at sea, if that were to occur, without danger or real risk to
himself, his co-workers or his employer the Respondent and
the general public which it represents. Nor, as we have already
made clear, are we persuaded that Complainant could not per
form his duties on Shore. [My emphasis.]
The Tribunal further concluded that the Forces had
failed in its duty to accommodate.
Analysis
The only question before us is whether the Tribu
nal was correct in rejecting the Forces' defence.
Since the parties have recognized that the case at bar
is one of direct discrimination, as opposed to indirect
discrimination, as these words have been elaborated
particularly by Wilson J., for the majority, in Central
Alberta Dairy Pool v. Alberta (Human Rights Com-
12 Ibid., at p. 1258.
mission), 13 no duty to accommodate arises in cases
where a BFOR is claimed since by definition an
occupational requirement is job related, not employee
related.l 4
In Ontario Human Rights Commission et al. v.
Borough of Etobicoke, 15 cited at length by Wilson J.
in the Alberta Dairy Pool case, McIntyre J. dealt with
a BFOR provision in the following terms: 16
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 employ
ment, 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.
He then defined the two components of a BFOR:
... To be a bona fide occupational qualification and require
ment a limitation ... 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. 17
There is no question that the first component, the
subjective test is met. The real question is whether
the requirement of a clean bill of health free from a
"heart condition" is "reasonably necessary to assure
the efficient and economical performance of the job
13 [1990] 2 S.C.R. 489, at pp. 505-506.
14 Ibid., at p. 510-511.
13 [1982] 1 S.C.R. 202.
16 Ibid., at p. 208.
17 Ibid.
without endangering the employee, his fellow
employees and the general public"?"
The Forces produced as a witness Dr. John D.
Smith, Deputy Command Surgeon for Maritime
Command, who served as a medical officer on board
Her Majesty's Canadian ships. He first described at
length the type of facilities available on board ships
in cases of heart problem. He was then asked: 19
What are these facilities aimed at doing in the treatment of
heart accidents?
A. The facilities on board the destroyers, is basically meant
to stabilize the patient if you can. In the destroyer, a
steam driven destroyer, you've only got one Med A. He
can do an assessment of the patient, he cannot in fact do
a definitive diagnosis.
Q. How about the treatment available on board supply
ships?
A. Well, on a supply ship you're a little better off. You've
got a Medical Officer who's got more training than a
Medical Assistant has and he has available to him an
electrocardiogram that might add another piece of infor
mation that could assist in making the diagnosis.
Q. So basically, whenever there is a cardiac incident on
board a ship, the first thing you want to do is to stabilize.
Q. And then what happens?
A. You would want to think about getting him off there.
Q. How can you do that?
A. The means of getting patients off the ship is ... well,
there are really only three ways. One is to stop what
you're doing and take the ship alongside and, you know,
transfer the patient ashore via a stretcher.
The second means is to have them transferred by a Jack Stay
to...
Q. What's a Jack Stay.
18 This test was applied by Wilson J., for the majority, in the
Alberta Dairy Pool case. I do not share the view expressed by
my colleague Marceau J.A. in obiter that this test may be read
as having been stiffened by the minority opinion so that it may
now read as "absolutely necessary".
19 A.B., at pp. 325-330.
A. A Jack Stay is a line that you pass from one ship to
another on the Jack Stay, hanging from the line. Very
anxiety provoking situation because you're hanging
between two ships that are steaming along probably 70
feet apart with the sea below you and, you know, the
ships are moving in and out and the rope is going, or the
Jack Stay is going up and down and you're ... anxiety
provoking, and I can only describe that as having gone
over it being perfectly well. 1f you were in the midst of
having a heart attack I'm sure it would be even more
anxiety provoking.
Q. And what would the last means be?
A. The third means would be using a helicopter, if a heli
copter were available to you.
Q. And if it is, what are the drawbacks?
A. Well, the helicopters that we use are a Sea King, which
are about 25 years old. The first drawback is whether or
not it's working, because you know, there's only one on
the ship and if they break down and you don't have the
part then it doesn't fly. So presuming it's working, or
another ship in company has one available, you've got to
presume the flying conditions are within limits, that is
that the sea state is not excessive so you can take off and
that the weather is not so bad that the helicopter can't
fly, and of course you've got to have a place to take the
patient.
The range of the helicopter is about 240 miles. So you've
got to have a place for the helicopter to land within 240 miles
and I would probably suggest that greater than 50% of the time
that's not possible.
Q. Are there any other drawbacks to transportation by ...
A. Yes. In a helicopter you're virtually in an unmonitored
situation...
Now, as I said, the range of the helicopter is about 240 miles
and they can travel at 120 miles an hour, so you know, he may
be in the helicopter for a period of up to two hours, where
you're not even going to get a blood pressure or a pulse or
listen to his chest. You can do nothing except look at him and
say how are you doing.
You could administer drugs that were appropriate on route,
but you could do no monitoring of the patient.
Q. Now you told us a bit about the drawbacks of transfering
a patient by ...
A. Jack Stay. Then the only place you would transfer him to
would be a supply ship if there were one available.
Q. And what drawbacks are there to bringing the patient
back to port?
A. Well, in that case you're aborting the mission. The ship
is sent out there at great expense to do a job, whether
that job is a search and rescue role or that it's a Fisheries
patrol or whether it's a training role, it's gone out there
to do something and you may be asking the Command
ing Officer to abort his mission to bring the patient
ashore.
Dr. Smith's testimony was uncontradicted. It can
hardly be characterized as "impressionistic". 20
The respondent enjoyed sea duties. The risk taking
was his. However, in doing so, he could only put at
risk the lives of others, since none of the operations
described, whether the Jack Stay procedure or rescue
by helicopter, could be done without endangering the
lives of his fellow companions. Moreover, these
operations could only be carried out at considerable
public expense.
In Ontario Human Rights Commission et al. v.
Borough of Etobicoke, 21 McIntyre J. distinguished
mandatory retirement for reasons of safety from
mandatory retirement for purely economic reasons.
He stated: 22
In cases where concern for the employee's capacity is largely
economic, that is where the employer's concern is one of pro
ductivity, 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 impos
sible, 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.
He then continued: 23
Faced with the uncertainty of the aging process an employer
has, it seems to me, two alternatives. He may establish a retire
ment 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 employ
ment, particularly in those affecting public safety such as that
of airline pilots, train and bus drivers, police and firemen, con
sider that the risk of unpredictable individual human failure
20 Ibid., at p. 210.
21 Supra, at p. 202.
22 Ibid., at p. 209.
23 Ibid., at pp. 209-210.
involved in continuing all employees to age sixty-five may be
such that an arbitrary retirement age may be justified for appli
cation 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, recogni
tion 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 quali
fication and requirement has been shown the board of inquiry
and the court must consider whether the evidence adduced jus
tifies 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.
This last paragraph of McIntyre J. was summarized
by Wilson J. in the Alberta Dairy Pool case in the
following way: 24
Where, however, the cost of "unpredictable human failure" is
public safety, the Court agreed that an arbitrary retirement age
may be imposed. [My emphasis.]
The difficulty of this case, however, is to appreci
ate what the Tribunal precisely did when it assessed
the evidence with regard to the individual, concerned.
It was within its domain to determine whom it
believed and whom it disbelieved among the various
experts. In such a case, there would be no reviewable
error by this Court unless the conditions for interven
tion under paragraph 28(1)(c) of the Federal Court
Act were met. Once, however, it accepted, as it did in
my view, that there was "an element of risk" in send
ing the respondent to a sea posting, "as compared to a
person in excellent health", 25 it erred in law in
assessing the degree of the risk so as to justify the
application of the discriminatory rule. The only con
clusion available to it was that the Forces were enti
tled to impose an arbitrary demarcation line. As long
as there was an element of risk, the Forces' require
ment of good health constituted a BFOR.
24 Supra, at p. 504.
25 A.B., at p. 1257.
Conclusion
I would allow the section 28 application, I would
set aside the decision of the Canadian Human Rights
Tribunal, rendered on August 2, 1991, and I would
affirm the official notification of release issued by the
Canadian Armed Forces on March 18, 1982.
* * *
The following are the reasons for judgment ren
dered in English by
DÉCARY J.A.: I agree with my colleague Marceau
J.A. that this application should be dismissed.
With respect to the main argument raised by the
applicant, i.e. denial of a fair hearing because the
hearing was not reopened after the publication of the
judgment of the Supreme Court in Central Alberta
Dairy Pool v. Alberta (Human Rights Commission),
[1990] 2 S.C.R. 489, I wish to make the following
comment in addition to those already made by my
colleague.
The hearing before the Tribunal concluded on June
7, 1990. The judgment of the Supreme Court in
Alberta Dairy Pool was delivered on September 13,
1990. The decision of the Tribunal was signed by the
Tribunal on June 17, 1991 and received by the appli
cant on August 2, 1991. The applicant did not, at any
time during that relatively long period that elapsed
between the moment the Supreme Court delivered its
judgment and the moment the Tribunal rendered its
decision, seek to reopen the hearing. Counsel for the
applicant conceded at the hearing that the Attorney
General of Canada had taken "the chance" that the
Tribunal would not refer in its decision to Alberta
Dairy Pool. This is not a case of a party being denied
an opportunity to debate a fundamental change of the
law. This is a case of a party so unconvinced that
there was indeed such a fundamental change or that
new evidence should be adduced as a result of the
judgment of the Supreme Court, that it did not bother
to seek leave—which it had ample time to do—to
reopen the hearing. The conduct of the applicant
estops her, in the particular circumstances of this
case, from alleging violation of the rules of natural
justice.
With respect to the secondary argument raised by
the applicant, i.e. whether the Tribunal was correct in
rejecting the Forces' defence, I cannot agree with the
conclusion reached by my colleague Desjardins J.A.
While I might not endorse every paragraph in the
Tribunal's decision when taken out of context, I can
not say that the Tribunal erred in a reviewable way in
its assessment of the evidence or reached a conclu
sion that it could not reasonably reach. Basically, as I
see it, the Tribunal found that the applicant had not
made her case that there was a "sufficient risk of
employee failure", to use the words of McIntyre J. in
Ontario Human Rights Commission et al. v. Borough
of Etobicoke, [1982] 1 S.C.R. 202, at page 210, to
warrant the dismissal of Levac. The medical evidence
adduced by the applicant with respect to the heart
condition of Levac was, to put it mildly, remarkably
meager. Her principal medical expert, Lt. Col. Kafka,
did not at any time examine Levac personally but
rather based his evidence on an examination and
review of Levac's medical record from March 7,
1979 to August 9, 1983 (A.B., vol. 7, at page 1077;
vol. 7, at pages 1240-1241). The respondents' medi
cal expert, Dr. Jean D. Gratton, had examined Levac
personally on November 12, 1986. The Tribunal,
while it did not say so in explicit terms, was obvi
ously more impressed with Dr. Gratton's testimony
and preferred it to that of Dr. Kafka. There being no
evidence of a "sufficient risk", the Tribunal was enti
tled in this particular instance, to uphold Levac's
complaint.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.