Administrative law – Human rights complaints – Disability – Evidence – Duty to accommodate – Occupational requirement
Oak Bay Marina Ltd. (c.o.b. Painter’s Lodge) v. British Columbia (Human Rights Commission),  B.C.J. No. 2029, British Columbia Court of Appeal, September 10, 2002, Newbury, Hall and Saunders JJ.A.
A fishing guide with a bipolar affective disorder complained to the B.C. Council of Human Rights, alleging that he had been discriminated against by reason of a physical or mental disability when he was refused continued employment following hospitalization. The tribunal member hearing the complaint found that the employer had no accurate information about bipolar disorder or the likelihood of a relapse on which it could conclude that employing the guide constituted too great a risk and therefore failed to show that it was impossible to accommodate employees sharing the guide’s characteristics without imposing undue hardship. On judicial review, the chambers judge concluded the tribunal had erred in law in its assumption that the employer had “no accurate information”, and that earlier events known to the employer were logically probative of the risk analysis the employer was required to make. The chambers judge also found that there was no blanket refusal or policy applied by the employer and that the guide was individually assessed. For these reasons, the chambers judge quashed the tribunal’s decision.
The chamber judge’s decision is upheld. Two Supreme Court of Canada decisions establish a “unified approach” to the defence of “bona fide occupational requirement” referred to in section 13(4) of the Human Rights Code, R.S.B.C. 1996, c. 210 (British Columbia (Public Service Employee Relations Commission) v. BCGSEU,  3 S.C.R. 3 (“Meiorin”) and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights),  3 S.C.R. 868 (“Grismer”)). Grismer and Meiorin made it clear that once the employee proved he had been denied employment because of his mental disability, “prima facie discrimination” had been shown. The onus then shifted to the employer to establish the defence of “bona fide occupational requirement: (1) the “standard” (reasonable safety on the water) was adopted 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 was reasonably necessary to the accomplishment of that legitimate work-related purpose in that it is impossible to accommodate the individual employees sharing the characteristics of the complainant without imposing undue hardship on the employer.
The application of the law regarding accommodation presents particular challenges where the disability is not a physical one but a mental one, and the “standard” is not an objectively determinable test but an unchallengeable sine qua non of the employer’s activities – safety on the water.
Here, the chambers judge correctly ruled that the tribunal’s decision must be quashed as the tribunal erred in law in dismissing as irrelevant the information the employer had in its direct experience with the employee. The matter was remitted back to the tribunal for rehearing, so that the issue of “bona fide occupational requirement” may be decided upon all relevant evidence.
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