S.C.C. Rules on Test for Bona Fide Occupational Qualification

Ontario (Human Rights Comm.) v. Etobicoke (Borough) (1982), 3 C.H.R.R. D/781 (S.C.C.)

In a unanimous decision, the Supreme Court of Canada rules that the retirement of firefighters at age 60 by the Borough of Etobicoke constitutes a violation of the Ontario Human Rights Code because the employer in the case did not discharge the onus of proof necessary to establish that the early mandatory retirement age was justified by a bona fide occupational requirement.

This appeal is from a decision of the Ontario Court of Appeal which, along with the Divisional Court, reversed the original Board of Inquiry ruling that the firefighters were discriminated against because of their age. The Board of Inquiry found that the Borough of Etobicoke failed to discharge the burden of proof upon them to show that the discrimination was based on a bona fide occupational requirement. The Board found that the evidence provided was "impressionistic" and noted the insufficiency of general assertions by witnesses that firefighting is a "young man's game".

The Supreme Court unanimously restores this decision of the Board of Inquiry. The Supreme Court rules that the evidence adduced before the Board of Inquiry was inadequate to discharge the burden of proof lying upon the employer, finding that the evidence did not cover the detailed nature of the duties to be performed, the conditions existing in the workplace, and the effect of such conditions upon employees, particularly upon those at or near the retirement age sought to be supported.

The Supreme Court also rejects the respondent's argument that because the early mandatory retirement age had been agreed to in the terms of the collective agreement with the union representing the appellant firefighters, the early retirement age should be considered bona fide. The Court rules that parties cannot contract out of the provisions of an enactment like the Ontario Human Rights Code which constitutes public policy and that contracts having such effect are void.

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