Public Service Employee v. BCGSEU (1999), 244 N.R. 145 (SCC)
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Temp. Cite: [1999] N.R. TBEd. SE.004
The British Columbia Government and Service Employees’ Union (appellant) v. The Government of the Province of British Columbia, as represented by the Public Service Employee Relations Commission (respondent) and The British Columbia Human Rights Commission, The Women’s Legal Education and Action Fund, The Disabled Women’s Network Canada, and The Canadian Labour Congress (intervenors)
(26274)
Indexed As: Public Service Employee Relations Commission (B.C.) v. British Columbia Government and Service Employees’ Union
Supreme Court of Canada
Lamer, C.J.C., L’Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie, JJ.
September 9, 1999.
Summary:
A female forest firefighter’s employment was terminated because of her inability to meet a newly required aerobic fitness standard. Her union grieved on her behalf. An arbitrator allowed the grievance, ruling that the firefighter established a prima facie case of adverse effect discrimination by showing that the aerobic standard had a disproportionately negative effect on women as a group (women had generally lower aerobic capacity). Further, there was no credible evidence that the standard was necessary for the safe and efficient performance of the work. The arbitrator ordered her reinstatement. The government employer appealed.
The British Columbia Court of Appeal, in a judgment reported 94 B.C.A.C. 292; 152 W.A.C. 292, allowed the appeal and set aside the arbitrator’s award. The court held that as long as the standard was necessary for the safe and efficient performance of the work and was applied through individualized testing, there was no discrimination. The union appealed.
The Supreme Court of Canada allowed the appeal and restored the arbitrator’s decision. The standard was prima facie discriminatory and was not a bona fide occupational requirement. The court substituted (for the traditional bifurcated approach to workplace discrimination) a uniform three part test that did not distinguish between “direct” and “adverse effect” discrimination.
Civil Rights – Topic 910
Discrimination – General principles – Adverse effect or indirect discrimination – [See
Civil Rights – Topic 981
].
Civil Rights – Topic 980.1
Discrimination – Accommodation – General – An aerobic fitness standard prima facie discriminated against female employees – The employer submitted that accommodating female employees would undermine the morale of the predominantly male workforce – The Supreme Court of Canada stated that “the attitudes of those who seek to maintain a discriminatory practice cannot be reconciled with the [Human Rights] Code. These attitudes cannot therefore be determinative of whether the employer has accommodated the claimant to the point of undue hardship … Although serious consideration must of course be taken of the ‘objection of employees based on well-grounded concerns that their rights will be affected’, discrimination on the basis of a prohibited ground cannot be justified by arguing that abandoning such a practice would threaten the morale of the workforce” – See paragraph 80.
Civil Rights – Topic 981
Discrimination – Employment – General – Traditionally, discrimination in employment was analyzed according to whether the standard being challenged was direct discrimination (employer must establish a bona fide occupational requirement) or adverse effect discrimination (employer must show only a rational connection between the standard and the job and that employee could not be accommodated without undue hardship) – The Supreme Court of Canada substituted for this bifurcated approach “a new model of analysis that avoids the threshold distinction between direct discrimination and adverse effect discrimination and integrates the concept of accommodation within the BFOR defence.” – The court set out the three part test for the new unified approach – See paragraphs 19 to 54.
Civil Rights – Topic 987
Discrimination – Employment – On basis of sex – A female forest firefighter’s employment was terminated because she failed to meet a newly required aerobic fitness standard (2.5 kilometre run in 11 minutes) – The Supreme Court of Canada held that the standard prima facie discriminated against women and was not a bona fide occupational requirement – Although the employer adopted the standard for a purpose rationally connected to the performance of the job and honestly believed the standard was necessary, the passing of the aerobic standard was not shown to be reasonably necessary to the safe and efficient performance of the work of a forest firefighter – The employer failed to establish that it would suffer undue hardship if a different standard was used – See paragraphs 69 to 82.
Civil Rights – Topic 992
Discrimination – Employment – Adverse effect or indirect discrimination – [See
Civil Rights – Topic 981
].
Civil Rights – Topic 998
Discrimination – Employment – Exceptions – Bona fide or reasonable occupational requirement or qualification – The Supreme Court of Canada set out a three part test for determining whether a prima facie discriminatory workplace standard was a bona fide occupational requirement: “An employer may justify the impugned standard by establishing on the balance of probabilities: (1) that the employer adopted the standard for a purpose rationally connected to the performance of the job; (2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and (3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.” – See paragraph 54.
Civil Rights – Topic 998
Discrimination – Employment – Exceptions – Bona fide or reasonable occupational requirement or qualification – [See
Civil Rights – Topic 981
and
Civil Rights – Topic 987
].
Civil Rights – Topic 1192
Discrimination – Exemptions or exceptions – General – Undue hardship – [See
Civil Rights – Topic 987
and first
Civil Rights – Topic 998
].
Cases Noticed:
Human Rights Commission (Ont.) and O’Malley v. Simpsons-Sears, [1985] 2 S.C.R. 536; 64 N.R. 161; 12 O.A.C. 241; 23 D.L.R.(4th) 321; 9 C.C.E.L. 185; 17 Admin. L.R. 89; 86 C.L.L.C. 17,002, refd to. [para. 19].
Human Rights Commission (Ont.), Dunlop, Hall and Gray v. Borough of Etobicoke, [1982] 1 S.C.R. 202; 40 N.R. 159; 132 D.L.R.(3d) 14, refd to. [para. 20].
Caldwell v. Catholic Schools of Vancouver Archdiocese, [1984] 2 S.C.R. 603; 56 N.R. 83, refd to. [para. 20].
Caldwell v. Stuart – see Caldwell v. Catholic Schools of Vancouver Archdiocese.
Brossard (Town) v. Commission des droits de la personne du Québec and Laurin, [1988] 2 S.C.R. 279; 88 N.R. 321; 18 Q.A.C. 164, refd to. [para. 20].
Central Alberta Dairy Pool v. Human Rights Commission (Alta.), [1990] 2 S.C.R. 489; 113 N.R. 161; 111 A.R. 241, refd to. [para. 21].
Human Rights Commission (Sask.) and Craig v. Saskatoon (City) and Saskatoon Professional Fire Fighters Union, Local 80, [1989] 2 S.C.R. 1297; 103 N.R. 161; 81 Sask.R. 263, refd to. [para. 21].
Large v. Stratford (City) et al., [1995] 3 S.C.R. 733; 188 N.R. 124; 86 O.A.C. 81, refd to. [para. 21].
Canadian Human Rights Commission v. Toronto-Dominion Bank et al., [1998] 4 F.C. 205; 229 N.R. 135 (F.C.A.), refd to. [para. 28].
Taylor and Western Guard Party v. Canadian Human Rights Commission, [1990] 3 S.C.R. 892; 117 N.R. 191, refd to. [para. 29].
Griggs v. Duke Power Co. (1971), 401 U.S. 424, refd to. [para. 29].
Commission scolaire régionale de Chambly v. Syndicat de l’enseignement de Champlain et autres, [1994] 2 S.C.R. 525; 169 N.R. 281; 62 Q.A.C. 241, refd to. [para. 32].
Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 33].
Canada (Attorney General) v. Levac et al. (1992), 145 N.R. 369; 22 C.H.R.R. D/259 (F.C.A.), refd to. [para. 38].
Large v. Stratford (City) et al. (1992), 56 O.A.C. 10; 92 D.L.R.(4th) 565 (Div. Ct.), refd to. [para. 38].
Saran v. Delta Cedar Products Ltd., [1995] B.C.C.H.R.D. No. 3, refd to. [para. 38].
Grismer v. British Columbia (Attorney General) (1994), 25 C.H.R.R. D/296 (B.C.C.H.R.), refd to. [para. 38].
Thwaites v. Canada (Armed Forces) (1993), 19 C.H.R.R. D/259 (Can. Hum. Rts. Trib.), refd to. [para. 38].
Action Travail Des Femmes v. Canadian National Railway Co. et al., [1987] 1 S.C.R. 1114; 76 N.R. 161; 40 D.L.R.(4th) 193, refd to. [para. 39].
Canadian National Railway Co. v. Canada (Canadian Human Rights Commission) – see Action Travail Des Femmes v. Canadian National Railway Co. et al.
Insurance Corporation of British Columbia v. Heerspink and Director, Human Rights Code, [1982] 2 S.C.R. 145; 43 N.R. 168, refd to. [para. 43].
Zurich Insurance Co. v. Human Rights Commission (Ont.), [1992] 2 S.C.R. 321; 138 N.R. 1; 55 O.A.C. 81; 93 D.L.R.(4th) 346, refd to. [para. 43].
Brennan v. Canada and Robichaud, [1987] 2 S.C.R. 84; 75 N.R. 303, refd to. [para. 44].
Robichaud v. Canada (Treasury Board) – see Brennan v. Canada and Robichaud.
Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255; 56 D.L.R.(4th) 1, refd to. [para. 49].
Eldridge et al. v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81; 38 B.C.L.R.(3d) 1, refd to. [para. 49].
Canadian National Railway Co. v. Bhinder and Canadian Human Rights Commission, [1985] 2 S.C.R. 561; 63 N.R. 185, refd to. [para. 49].
Renaud v. Board of Education of Central Okanagan No. 23 and Canadian Union of Public Employees, Local 523, [1992] 2 S.C.R. 970; 141 N.R. 185; 13 B.C.A.C. 245; 24 W.A.C. 245; [1992] 6 W.W.R. 193, refd to. [para. 62].
R. v. Cranston, [1997] C.H.R.D. No. 1 (Can. Hum. Rts. Trib.), refd to. [para. 80].
Statutes Noticed:
Human Rights Code, R.S.B.C. 1996, c. 210, sect. 3 [para. 44]; sect. 13(1) [para. 15].
Authors and Works Noticed:
Canada, Human Rights Commission, Special Report to Parliament, The Effects of the Bhinder Decision on the Canadian Human Rights Commission (1986), generally [para. 51].
Crane, M.C., Human Rights, Bona Fide Occupational Requirements and the Duty to Accomodate: Semantics or Substance? (1996), 4 C.L.E.L.J. 209, pp. 226, 227, 228, 229 [para. 31]; 231, 232 [para. 51].
Day, Shelagh, and Brodsky, Gwen, The Duty to Accomodate: Who Will Benefit? (1996), 75 Can. Bar Rev. 433, pp. 447 to 457 [para. 28]; 459, 460 [para. 51]; 462 [para. 41]; 470 [para. 51].
Etherington, Brian, Central Alberta Dairy Pool: The Supreme Court of Canada’s Latest Word on the Duty to Accomodate (1993), 1 Can. Lab. L.J. 311, pp. 324, 325 [paras. 35, 49].
Lepofsky, M. David, The Duty to Accomodate: A Purposive Approach (1993), 1 Can. Lab. L.J. 1, pp. 8, 9 [para. 29]; 16, 17 [para. 51].
McKenna, Ian B., Legal Rights for Persons with Disabilities in Canada: Can the Impasse be Resolved? (1997-98), 29 Ott. L. Rev. 153, generally [para. 39].
Messing, Karen, and Stevenson, Joan, Women in Procrustean Beds: Strength Testing and the Workplace (1996), 3 Gender, Work and Organization 156, generally [para. 75].
Messing, Karen, One-Eyed Science: Occupational Health and Women Workers (1998), generally [para. 75].
Molloy, Anne M., Disability and the Duty to Accomodate (1993), 1 Can. Lab. L.J. 23, pp. 36, 37 [paras. 28, 51].
Pentney, William, Belonging: The Promise of Community: Continuity and Change in Equality Law 1995-96 (1996), 25 C.H.R.R. C/6, generally [para. 51].
Phillips, Paul, and Phillips, Erin, Women and Work, Inequality in the Canadian Labour Market (1993), pp. 45 to 95 [para. 39].
Watkin, Kenneth, The Justification of Discrimination Under Canadian Human Rights Legislation and the Charter: Why So Many Tests? (1992), 2 N.J.C.L. 87, pp. 86 to 93 [para. 51].
Yalden, Maxwell F., The Duty to Accomodate: A View From the Canadian Human Rights Commission (1993), 1 Can. Lab. L.J. 283, pp. 286 to 293 [para. 51].
Counsel:
Kenneth R. Curry, Gwen Brodsky, John Brewin and Michelle Alman, for the appellant;
Peter A. Gall, Lindsay M. Lyster and Janine Benedet, for the respondent;
Deirdre A. Rice, for the intervenor, British Columbia Human Rights Commission;
Kate A. Hughes and Melina Buckley, for the intervenors, Women’s Legal Education and Action Fund, Disabled Women’s Network Canada and Canadian Labour Congress.
Solicitors of Record:
British Columbia Government and Service Employees’ Union, Burnaby, B.C., for the appellant;
Heenan, Blaikie, Vancouver, B.C., for the respondent;
British Columbia Human Rights Commission, Victoria, B.C., for the intervenor, British Columbia Human Rights Commission;
Cavalluzzo, Hayes, Shilton, McIntyre & Cornish, Toronto, Ontario, for the intervenors, Women’s Legal Education and Action Fund, Disabled Women’s Network Canada and Canadian Labour Congress.
This appeal was heard on February 22, 1999, before Lamer, C.J.C., L’Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie, JJ., of the Supreme Court of Canada.
On September 9, 1999, the judgment of the Supreme Court of Canada was delivered in both official languages by McLachlin, J.
