T-1629-93

IN THE FEDERAL COURT OF CANADA TRIAL DIVISION

BETWEEN:

ATTORNEY GENERAL OF CANADA

Applicant

- and -

SIMON THWAITES and
CANADIAN HUMAN RIGHTS COMMISSION

Respondents

- and -

THE CANADIAN AIDS SOCIETY
THE COALITION OF PROVINCIAL ORGANIZATIONS OF THE HANDICAPPED and
THE CANADIAN DISABILITY RIGHTS COUNCIL

Intervenors

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MEMORANDUM OF FACT AND LAW OF THE INTERVENORS,

THE CANADIAN AIDS SOCIETY,
THE COALITION OF PROVINCIAL ORGANIZATIONS OF THE HANDICAPPED
AND THE CANADIANS DISABILITY RIGHTS COUNCIL

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INDEX

PART I - THE INTERVENTION

PART II - THE FACTS

PART III - THE ISSUES

PART IV - THE LAW

A. GENERAL PRINCIPLES

B. ISSUE ONE: CONSTITUTIONALITY CONSISTENT INTERPRETATION OF BFOR

C. ISSUE TWO: THE DISTINCTION BETWEEN DIRECT AND ADVERSE IMPACT DISCRIMINATION

D. ISSUE THREE: INDIVIDUAL ASSESSMENT

E. ISSUE FOUR: RISK

PART V - AUTHORITIES

PART I - THE INTERVENTION

1. The Canadian AIDS society (the "Society"), the Coalition of Provincial Organizations of the Handicapped ("COPOH") and the Canadian Disability Rights Council ("CDRC") intervene in this judicial review pursuant to an Order of The Honourable Madam Justice Reed, dated December 13, 1993.

2. The Society is a national coalition of 93 community-based AIDS organizations and community-based AIDS projects. The Society's role is to speak as a national voice and to act as a national forum for community-based response to HIV infection and AIDS. The Society also undertakes advocacy on behalf of persons affected by HIV and AIDS, acts as a resource on HIV and AIDS issues for its member organizations and coordinates community-based participation in a national strategy to combat HIV and AIDS. The specific objectives of the Society include:

   1. to develop models of non-discriminatory legislation and policy with respect to HIV and AIDS;
   2. to promote the adoption of non-discriminatory legislation with respect to HIV and AIDS;
   3. to promote the legal and human rights of people living with HIV and AIDS; and
   4. to lobby for equal access to effective services for all persons affected by HIV.

   Affidavit of David Garmaise, paragraphs 7 and 8.

3. COPOH is a national, not-for-profit umbrella organization which represents people with a variety of disabilities. COPOH was established by people with disabilities to create a voice for disabled Canadians and to promote the full participation and equal opportunity of people with disabilities in Canadian society. COPOH therefore advocates the following objectives:

   1. to improve the status of persons with disabilities;
   2. to promote self-help for persons with disabilities;
   3. to provide a democratic structure for disabled persons to voice concerns;
   4. to monitor federal legislation affecting persons with disabilities;
   5. to promote policies determined by disabled persons in Canada;
   6. to share information and co-operate with disabled persons' organizations in Canada and in other Countries;
   7. to establish a positive image of disabled persons in Canada.

   Affidavit of Francine Arsenault, paragraphs 4 and 7.

4. CDRC is a national, not-for-profit legal advocacy organization incorporated on May 10, 1988 to secure equality rights for disabled Canadians by means of strategic test case litigation under the Canadian Charter of Rights and Freedoms and human rights legislation, and to undertake related research. The member organizations of the CDRC are national, provincial and local organizations which among them represent persons with many mental and physical disabilities, as well as various geographic regions throughout Canada.

   Affidavit of Sue Williams, paragraphs 4 and 7.

5. The purpose of this intervention is to provide for this Honourable court the perspective of persons with disabilities, including those living with HIV and AIDS, on the various issues raised by this judicial review. The Society, COPOH and CDRC (the "Intervenors") take no position on the merits of Mr. Thwaites' complaint on its facts, not on the law or facts related to the issues of monetary compensation, costs, interest, or the degree of deference to be given to decision-making within the military.

   PART II - THE FACTS

6. The Intervenors accept the facts as set out in the Memorandum of Fact and Law of the Respondent, the Canadian Human Rights Commission.

7. The impact of AIDS/HIV on any given person is based on individual variables. The evidence before the Tribunal below establishes that:

   1. persons wit HIV infection are "variable" on an individual bases;
      and
   2. to determine the impact of HIV on a person, it is best to follow the pattern of change of each individual.

   Evidence of Dr. Johnston, Transcript Vol. 1 at p. 57.

   Evidence of Dr. Schlech, Transcript Vol. 5 at p. 816.

   Evidence of Dr. Wainberg, Transcript Vol. 2 at p. 236 and p. 238.

8. This variation between individual causes doctors to take an individualized approach to the medical care of persons with HIV-AIDS. Such care must take into account not only the medical needs of the patient but other factors personally important to him or her. As stated by Dr. Cameron (an expert medical witness called by the applicant) it is important to be "flexible" and "to accommodate a medical therapy to an individual person's need". In this regard he endorsed the position taken by Dr. Schlech (an expert medical witness called by the respondent) that doctors try "to accommodate a person's personal and life goals or aspirations into some degree of compassionate, flexible and individualized management".

   Evidence of Dr. Cameron, Transcript Vol. 16 at pp. 2823 2824.

   Evidence of Dr. Schlech, Transcript Vol. 12 at p. 1981.

9. In particular, where an individual may fall within the Centers for Disease Control ("CDC") classification system, it is not reliable indicator of the medical care he or she may require of his or individual capabilities. The CDC Classification System was designed t be an "epidemiological tool". Placing an individual within a category is "arbitrary and therefore not entirely useful in terms of each and every patient".

   Evidence of Dr. Cameron, Transcript Vol. 16 at p. 2678.

   Evidence of Dr. Wainberg, Transcript Vol. 2 at p. 238.

   Evidence of Dr. Schlech, Transcript Vol. 12 at p. 1918.

10. The medical profession has moved in modern times from a paternalistic approach to medical care to one which is driven by informed decision-making by the patient himself. It is the patient, not the doctor, who decides what sacrifices to make and what risks to his own health will be assumed. This principle was readily accepted by Dr. Cameron and Col. McLean, both of whom were medical experts called by the applicant (employer). Dr. Cameron stated in his evidence at p. 2826:

    The idea in this case of ready access to medical care. (sic) It's a relative risk. It's a judgement call. And in day-to-day life, those judgements belong to the patients, not only with diseases but with every other aspect of life that has some risk.

    and at p. 2824:

    I think in the process of making balanced decisions, it's very important that the patient herself or himself should be aware of the risks being taken an the sacrifices being made and the real decision on this is — or the real decisions on this process belong to the patient and it's the physician's job to try to assist the patient.

    Evidence of Dr. Cameron, Transcript Vol. 16 at pp. 2824 and 2825, 2826.

11. A similar opinion was expressed by Col. McLean, who stated in his evidence:

    At one time, I think patients were ordered to take things but now, I think even the military has moved to realizing the patient's responsibility and right to be informed and then make decisions based on the advantages and disadvantages.

    Evidence of Col. McLean, Transcript Vol. 13 at p. 2233.

    PART III - THE ISSUES

12. The Intervenors were granted leave to intervene with respect to four issues. Those issues, and an overview of the Intervenors' position on them, are set out below:

    1. Constitutionally Consistent Interpretation of BFOR: The Intervenors submit that the Canadian Human Rights Act (the "Act") must be interpreted in a manner consistent with the equality rights guaranteed to persons with disabilities by section 15 of the Canadian Charter of Rights and Freedoms (the "

    2. Distinction Between Direct and Adverse Impact Discrimination: The Intervenors submit that categorizing disability-based discrimination as being either direct or adverse impact is problematic and artificial. The degree to which employers are required to accommodate the needs of disabled employees is unaffected by whether the discrimination is direct or arises from adverse impact. In either case, a failure to accommodate short of undue hardship is itself discriminatory.

    3. Individual Assessment: Individualized assessment must be the norm in cases involving employees with disabilities. Generalized discriminatory rules cannot be sustained unless the employer has established that individual assessment is impossible or would impose an undue hardship.

    4. Risk: In determining risk as a factor in assessing undue hardship or in determining whether the BFOR defence is met, the degree of risk as well as the person or persons who bear the risk must be considered. To meet the BFOR test, any risk must be both real and substantial. Moreover, this standard is higher if it is the disabled person himself or herself who knowingly and willingly bears the risk.

    PART IV - THE LAW

    A. GENERAL PRINCIPLES

13. The issues raised in this judicial review must be considered within a framework of an analysis that advances equality rights. In this regard, it is essential to keep in mind the following fundamental and well-established principles of law:

    i. Human rights statutes have been recognized as having quasi-constitutional status. As such, the rights protected under human rights statutes must be given a broad and liberal construction consistent with their purpose of advancing the goal of equality for members of disadvantaged groups such as persons with disabilities.

    Ontario Human Rights Commission and O'Malley v. Simpson-Sears Ltd., [1985] 2 S.C.R. 536 at pp. 546-547, INTERVENORS' BOOK OF AUTHORITIES, VOLUME I, TAB 1.

    Action Travail des Femmes v. Canadian National Railway Company et al., [1987] 1 S.C.R. 1114 at pp. 1134-1138, INTERVENORS' BOOK OF AUTHORITIES, VOLUME 1, TAB 1.

    ii. Conversely, provisions within human rights statutes which purport to limit those guaranteed rights must be interpreted narrowly so as to promote the underlying purpose of the legislation. The Supreme Court of Canada has ruled that BFOR defences in human rights statutes should be given a narrow construction.

    Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561 at pp. 567 and 589, INTERVENORS' BOOK OF AUTHORITIES, VOLUME I, TAB 4.

    Commission des droits de la personne du Québec v. Town of Brossard and Line Laurin, [1988] 2 S.C.R. 279 at p. 307, INTERVENORS' BOOK OF AUTHORITIES, VOLUME II, TAB 8.

    Zurich Insurance Company v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321 at pp. 339-340, INTERVENORS' BOOK OF AUTHORITIES, VOLUME IV, TAB 22.

    iii. Human rights statutes are remedial in nature. A finding of discrimination is therefore appropriately based on a discriminatory effect even in the absence of any intention to discriminate. This principle has been applied by the Supreme Court of Canada to cases of direct discrimination as well as adverse impact discrimination.

    Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84 at pp. 99-91, INTERVENORS' BOOK OF AUTHORITIES, VOLUME III, TAB 16.

    O'Malley, supra, at pp. 547, 549-550, INTERVENORS' BOOK OF AUTHORITIES, VOLUME II, TAB 11.

14. These general principles were summarized by Sopinka, J. in the Zurich Insurance Company case as follows:

    In approaching the interpretation of human rights statutes, certain special principles must be respected. Human rights legislation is amongst the most pre-eminent category of legislation. It has been described as having a "special nature, not quite constitutional but certainly more than the ordinary" (Ontario Human Rights Commission v. Simpson-Sears Ltd., [1985] 2 S.C.R. 536. at p. 547). One of the reasons such legislation has been so described is that it is often the final refuge of the disadvantaged and the disenfranchised. As the last protection of the most vulnerable members of society, exceptions to such legislation should be narrowly construed (Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279, at p. 307).

    Zurich Insurance Company, supra, at p. 339, INTERVENORS' BOOK OF AUTHORITIES, VOLUME IV, TAB 22.

    B. ISSUE ONE: CONSTITUTIONALLY CONSISTENT INTERPRETATION OF BFOR

    (i) Principles of Constitutional Interpretation

15. All legislation including human rights legislation must, where possible, be interpreted and applied in a manner consistent with the guarantee of equality rights in section 15 of the Charter. Where provision of a human rights statute are inconsistent with those conferred under the Charter, they are of no force or effect, to the extent of the inconsistency.

    Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, sections 15 and 52, INTERVENORS' BOOK OF AUTHORITIES, VOLUME IV, TAB 24.

    Re Blainey and Ontario Hockey Association et al, (1986), 54 O.R. (2d) 513 (C.A.), INTERVENORS' BOOK OF AUTHORITIES, VOLUME III, TAB 14.

    Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038 at pp. 1077-1079, INTERVENORS' BOOK OF AUTHORITIES, VOLUME III, TAB 19.

16. It is not suggested in this case that the BFOR defence in section 15 of the Act necessarily violates section 15 of the Charter rights. As noted by Dickson, C.J.C. (as he then was) in the Bhinder case, the wording of the BFOR provision is "elastic" and "capable of having more than one meaning". It is submitted that the BFOR defence is capable of being interpreted in a manner consistent with the Charter while at the same time remaining consistent with its purpose within the Act. Where a constitutionally consistent interpretation is possible without undermining the clear intention of the legislation, it must be preferred to an interpretation which would violate Charter equality guarantees.

    Bhinder, supra, at p. 568, INTERVENORS' BOOK OF AUTHORITIES, VOLUME I, TAB 4.

    Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554 at pp. 581-582 per Lamer C.J., INTERVENORS' BOOK OF AUTHORITIES, VOLUME I, TAB 6.

    (ii) Section 15 of the Charter: Equality Requires Accommodation

17. The Supreme Court of Canada, in considering the equality rights protected by section 15 of the Charter, has ruled that identical treatment does not necessarily result in equality. Indeed, the Court noted in Andrews that the equal treatment of unequals can create inequality and that the "accommodation of difference" is the essence of true equality.

    Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at p. 169, INTERVENORS' BOOK OF AUTHORITIES, VOLUME I, TAB 3.

18. If the accommodation of differences is the essence of true quality under the Charter, then it follows logically that the failure to accommodate is a denial of equality. In other words, the equality rights under section 15 of the Charter include a substantive right to accommodation. Accommodation of the needs and differences of those protected under section 15 of the Charter is an essential and integral part of their equality rights, the denial of which is a barrier to true equality.

19. In Andrews, the meaning of discrimination is discussed only after the essential meaning of equality is established. In defining discrimination, McIntyre, J. held:

    I would say then that discrimination may be described as a distinction, whether intentional or not based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed.

    Andrews, supra, pp. 174-175, INTERVENORS' BOOK OF AUTHORITIES, VOLUME I, TAB 3.

20. The Supreme Court of Canada noted in Andrews that the analysis of discrimination under section 15 of the Charter is similar to the analysis of discrimination under provincial human rights legislation and made specific reference to the case of Simpson-Sears v. O'Malley in that regard. In the O'Malley case, the Court had ruled that the right to be free from discrimination guaranteed by human rights legislation extended beyond direct discrimination and included neutral rules which had an adverse impact on a group or person identified by a prohibited ground. The Court further ruled that in adverse impact situations the needs of the person or group affected must be accommodated unless to do so would cause undue hardship. The principles set out in O'Malley were recently applied by Chief Justice Lamer in the Rodriguez case. The Chief Justice (concurred in by Cory, J.) held that section 15 of the Charter extended to adverse impact discrimination and that the differences which exist between individuals must be taken into account in considering laws of general application.

    Andrews, supra, pp. 172-173, INTERVENORS' BOOK OF

    Rodriguez v. British Columbia (Attorney General), (September 30, 1993), (S.C.C.) [unreported], per Lamer C.J. (dissenting) at pp. 23-26, INTERVENORS' BOOK OF AUTHORITIES, VOLUME III, TAB 17 (D). AUTHORITIES, VOLUME I, TAB 3.

    (iii) Limitations on the Right to Accommodation

21. It has now been conclusively established that there is no reasonableness component to the analysis of the principles of equality and discrimination under section 15 of the Charter. The only limitation on the equality rights guaranteed by section 15 of the Charter is the "reasonable limit" provision contained in section 1 of the Charter.

    Andrews, supra, p. 178, INTERVENORS' BOOK OF AUTHORITIES, VOLUME I, TAB 3.

22. In the Act, the equality rights guaranteed are subject to the BFOR defence. In order for that defence to be constitutionally valid, it must be capable of satisfying the reasonable limit test under section 1 of the Charter. If the BFOR defence does not constitute a reasonable limit within the meaning of section 1 of the Charter, then it impairs the equality rights guaranteed by the Charter and in unconstitutional. Therefore, if the BFOR defence is capable of being interpreted in a manner that would constitute a reasonable limit under section 1, then it should be so interpreted in order to preserve its constitutionality.

23. In order for a limitation on an equality right to be justified under section 1 of the Charter it must meet the requirement of proportionality. This requirement has been defined as comprising three tests:

    1. the limitation must be rationally connected to its objective;

    2. the limitation must impair the right as little as possible; and

    3. the effects of the limitation on rights must be proportional to the objective of the limitation.

    R. v. Oakes, [1986] 1 S.C.R. 103 at pp. 138-139, INTERVENORS' BOOK OF AUTHORITIES, VOLUME II, TAB 13.

24. It is submitted that since the accommodation of differences goes to the core of equality itself, any human rights provision completely excluding the right to be accommodated could not possibly be proportional. However, it is conceded that some limitation to the accommodation right is not only reasonable but may, in some cases, be necessary. In these cases, a BFOR defence is not necessarily unconstitutional. However, the BFOR defence cannot be interpreted too broadly. It must be interpreted as limiting the right to accommodation but nor as denying the right altogether.

25. It is further submitted that the extent of the limit on accommodation must logically be "undue hardship". The undue hardship limit was imposed by the Supreme Court of Canada in O'Malley and has been adopted by several provincial jurisdictions in Canada as well as by the Americans with Disabilities Act in the United States as the appropriate standard to be applied in limiting the duty to accommodate.

    O'Malley, supra, pp. 552-555, INTERVENORS' BOOK OF AUTHORITIES, VOLUME II, TAB 11.

    Human Rights Code, R.S.O. 1990, c. H.19, ss. 11 and 17, INTERVENORS' BOOK OF AUTHORITIES, VOLUME IV, TAB 26.

    Human Rights Act, R.S.Y. 1986, Supp. c. 11, s. 7, INTERVENORS' BOOK OF AUTHORITIES, VOLUME IV, TAB 28.

    Saskatchewan Human Rights Code, S.S. 1979, c. S-24. 1, ss. 16 and 31(9), INTERVENORS' BOOK OF AUTHORITIES, VOLUME IV, TAB 27.

    Americans with Disabilities Act of 1990, July 26, 1990, Pub. L. No. 101-336, INTERVENORS' BOOK OF AUTHORITIES, VOLUME IV, TAB 23.

    (iv) Conclusion

26. It is submitted that the equality guarantee in section 15 of the Charter carries with it a right to be accommodated unless the accommodation would constitute undue hardship. The BFOR defence in section 15 of the Act must be interpreted in a manner consistent with the Charter and cannot therefore be interpreted as eliminating or reducing the level of protection (including the standard of accommodation) currently afforded by the Charter.

    C. ISSUE TWO: THE DISTINCTION BETWEEN DIRECT AND ADVERSE IMPACT DISCRIMINATION

27. The Intervenors submit that the proper interpretation of the right to accommodation under section 15 of the Act includes a recognition of its equal application both to cases of direct and to cases of adverse impact discrimination. The Intervenors further submit that an interpretation which does not recognize such a duty is consistent with the Charter and the equality rights analysis set out in Andrews.

    1. An employer's business premises are inaccessible to wheelchairs. Attendance at work is arguably an occupational requirement. In the context of an inaccessible building, is showing up at work an occupational requirement which directly discriminates against people who use wheelchairs because only they are affected? Or is it a neutral requirement which adversely impacts people who use wheelchairs, but which was not imposed intentionally to discriminate against them. In Brooks v. Canada Safeway, [1989] 1 S.C.R. 1219, the Supreme Court of Canada unanimously held that discrimination on the basis of pregnancy is a form of sex discrimination because only women can become pregnant. Applying this reasoning it could be argued that a workplace accessible only by steps constitutes direct discrimination on the grounds of disability because only persons with disabilities would be unable to climb the steps. On the other hand, it could be argued that the steps into the workplace are a neutral condition of general application which have an adverse impact on persons with mobility impairments.

    2. A forklift operator becomes paralyzed from the waist down in a car accident. In order to perform her job, she now requires a wheelchair lift to get into the cab of the forklift, and hand controls to operate it. The employer refuses to provide either. It is arguable that this constitutes direct discrimination because this particular employee cannot perform her job as a direct result of the employer's refusal, which was made knowing the implications of the refusal on the employee. Further, no other employees are affected or in any way subject to the employer's refusal. On the other hand, the employee could argue that the requirement of operating a forklift with foot pedals is a neutral occupational requirement which happens to have a disparate impact on her because of her disability.

    3. An employee who works as a computer programmer develops severe allergies to chemical substances present in her workplace and is told by her doctor that she must not be exposed to these substances over a prolonged period of time. She could perform her computer programming jog in her home, but her employer tells her that it is a work rule that all employees to their job at the premises. Is the refusal to allow the employee to work at home directly discriminatory or is it an adverse impact arising from a neutral requirement that all employees work in the office? Is this different from physical accessibility of the premises?

    4. A prospective employee who is hard of hearing applies for a clerical position in an office. One of the essential job duties is answering the phone. The phones are not equipped with amplifiers. The prospective employee is told he is not a qualified candidate for the job because he cannot answer the phone, which is essential to the job function. Arguably, this is direct discrimination because the employer has refused to hire this particular individual directly because of his disability, in effect adopting a rule that "no hearing impaired person shall be hired for this job". Conversely, it is arguable the requirement is neutral, that is, "the person holding this job must answer the phones". Of course, this means that the employee must be able to answer the particular phones provided by the employer, which in this case have no amplifiers.

    5. An employee in a car factory is required by his employer and under a collective agreement to work shifts. He develops diabetes and is told by his doctor that to control his condition he needs a stable work schedule, specifically, assignment to permanent day shifts. Working shifts is required of all employees, but has a disparate impact on this particular employee because of his disability. This requirement therefore fits easily within developed case law on adverse impact discrimination and accommodation would be required. But is it really any different from the other examples above?

28. These examples demonstrate that it is not easy to distinguish between direct and adverse impact discrimination in disability cases. It is therefore submitted that principles developed in BFOR cases involving religion and other grounds of discrimination must be critically examined and re-evaluated before rigidly applying them to disability cases.

29. In 1985 a majority of the Supreme Court of Canada (Dickson, then C.J.C. and Lamer, L., as he then was, dissenting) ruled in Bhinder v. Canadian National Railway Co., that accommodation is not a component of the BFOR test and that once a BFOR defence is established there is no duty to accommodate. The dissenting judgment found that an occupational requirement could not be imposed bona fide unless the employer had exercised its duty to accommodate.

    Bhinder, supra at pp. 580, 590, 569-573 and 578, INTERVENORS' BOOKS OF AUTHORITIES, VOLUME I, TAB 4.

30. Subsequently, in the Central Alberta Dairy Pool case in 1990, the majority of the Supreme Court of Canada overturned, in part, its decision in Bhinder. The principles expressed in Bhinder were held to be of no application in cases of adverse impact discrimination (such as was the case in Central Alberta Dairy Pool). Accordingly, in cases of adverse impact there was found to be a duty to accommodate short of undue hardship. However, the rule in Bhinder was found to still be applicable to cases of direct discrimination. This was the first instance of a distinction being made between direct and adverse impact discrimination in relation to the duty to accommodate. The dissenting judgment by Sopinka J.(in which LaForest and McLachlin, JJ. concurred) found no basis for making a distinction between adverse and direct discrimination and held that an employer must demonstrate that individual accommodation cannot be accomplished without undue hardship as a prerequisite to a successful BFOR defence.

    Alberta Human Rights Commission v. Central Alberta Diary Pool, [1990] 2 S.C.R. 489 at pp. 525-528, INTERVENORS' BOOK OF AUTHORITIES, VOLUME I, TAB 2.

31. It is submitted that the Supreme Court of Canada correctly decided in Central Alberta Dairy Pool that employers have a duty to accommodate in cases of adverse impact discrimination. However, the Intervenors support the dissenting judgment in Central Alberta Diary Pool with respect to the existence of a duty to accommodate in cases of direct discrimination notwithstanding the presence of a BFOR provision. The Intervenors point out the following as support for this position:

    1. having found that Central Alberta Dairy Pool involved adverse impact discrimination, the majority's ruling on the absence of a duty to accommodate in the face of a BFOR defence in direct discrimination cases was obiter;

    2. the Central Alberta Diary Pool decision does not consider the impact of section 15 of the Charter on the purposive interpretation of BFOR defences in human rights legislation;

    3. none of the principal cases (Etobicoke, Bhinder, Brossard, Saskatoon Fire Fighters, Central Alberta Dairy Pool) have considered the implication for persons with disabilities of the distinction between adverse impact and direct discrimination on the duty to accommodate; and

    4. the continued distinction between the application of the duty to accommodate in adverse impact discrimination cases and direct discrimination cases is artificial, results in considerable confusion for employers and employees s to what their duties are, and gives rise to illogical and inconsistent results in various contexts and is not in accordance with the principles of equality.

32. It is submitted that the right to equality in employment ought not to be dependent on artificial, legalistic boundaries drawn between direct and adverse impact discrimination. Indeed, it is illogical that that employers who discriminate inadvertently, through neutral rules with adverse impact on a particular group, would be required to accommodate short of undue hardship, while other employers could discriminate deliberately by refusing to hire individuals who might require any accommodation and be fully protected in this regard by the BFOR defence. Characterizing discrimination as being either direct or adverse impact ought not to have any impact on substantive equality rights. Continuing to make such distinctions adversely affects the equality rights of persons with disabilities.

    D. ISSUE THREE: INDIVIDUAL ASSESSMENT

33. The Intervenors support the submissions set out in paragraphs 60-65 of the Canadian Human Rights Commission's factum.

34. Because of the highly individualized nature of disability and the invalidity of generalizations about how any given individual will be affected by a particular disability, it is particularly important that persons with disabilities be individually assessed to determined employability and needed accommodations. It is submitted that generalized employment rules relating to disability will almost invariably fail to satisfy the BFOR defence because if the generalization cannot be validated, it cannot meet the "reasonableness" test articulated by the case law.

    Ontario Human Rights Commission v. Borough of Etobicoke, [1982] 1 S.C.R. 202 at pp. 209-210, INTERVENORS' BOOK OF AUTHORITIES, VOLUME II, TAB 10.

    Report of the United States Commission on Civil Rights, Accommodating the Spectrum of Individual Abilities (Washington: Clearinghouse Publication 81, September 1983) p. 162, INTERVENORS' BOOK OF AUTHORITIES, VOLUME IV, TAB 33.

    Human Rights Code, 1981, as Amended", Ontario Human Rights Commission, 1989, p. 3, paragraph N, INTERVENORS' BOOK OF AUTHORITIES, VOLUME IV, TAB 29.

35. Our society cannot be neatly divided into two categories: those who are disabled and those who are not. Persons with disabilities include a diverse range of individuals, each having unique levels of ability. A more accurate description of the differing abilities of members of society is in terms of a spectrum of individual abilities. This approach recognizes that in connection with any given task, members of society have differing degrees of ability or inability ranging from the extreme of excellence to the opposite extreme of utter incompetence. Thus, individual accommodation is required precisely because generalizations about persons with disabilities cannot be maintained when tested against the diverse individuals who fall under that broad label.

    TAB 30.

    Equality in Employment by Judge Rosalie Silberman Abella (as she then was) (Ottawa: Canadian Government Publishing Centre Supply and Services, 1984), pp. 38-46, in particular pp. 39, 43, INTERVENORS' BOOK OF AUTHORITIES, VOLUME IV, TAB 35.

    Accommodating the Spectrum of Individual Abilities, supra, pp. 86-101, in particular p. 87, INTERVENORS' BOOK OF AUTHORITIES, VOLUME IV, TAB 33.

36. In Central Alberta Dairy Pool the Supreme Court of Canada reaffirmed the applicability of the BFOR tests imposed in its earlier decisions in Brossard and in Saskatoon Firefighters. Thus, to establish a BFOR defence for an exclusionary rule of general application, an employer must prove:

    1. that the rule is not overly broad to accomplish its legitimate objectives; and

       Brossard, supra, at pp. 311-312, 315, 344, INTERVENORS' BOOK OF AUTHORITIES, VOLUME II, TAB 8.

    2. that the general rule was necessary because individualized assessment could not be done.

       Saskatchewan (Human rights Commission) v. Saskatoon Firefighters, [1989] 2 S.C.R. 1297 at pp. 1313-1314, INTERVENORS' BOOK OF AUTHORITIES, VOLUME III, TAB 18.

37. Thus, a generalized disability exclusion may have a legitimate objective and may catch within it individuals who should appropriately be excluded. However, if it also catches within it individuals who should not be excluded because of the limited impact of the disability upon them, it is overly broad and offends the rule in Brossard. This is supported by the presumption established in Saskatoon Firefighters in favour of individualized assessment whenever possible and by the finding in Andrews that distinctions based on assessment of individual capabilities will rarely be considered discriminatory whereas generalized distinctions made because of one's membership in a class will almost always constitute discrimination.

    Brossard, supra, pp. 311-312, 315, 344, INTERVENORS' BOOK OF AUTHORITIES, VOLUME II, TAB 8.

    Saskatoon Firefighters, supra, pp. 1313-1314, INTERVENORS' BOOK OF AUTHORITIES, VOLUME III, TAB 8.

    Andrews, supra, pp. 174-175, INTERVENORS' BOOK OF AUTHORITIES, VOLUME I, TAB 3.

38. While individualized assessment should always be the norm, it is recognized that this may not always be possible. It is submitted that the limit on when individualized assessment cannot be done should, for the sake of clarity and consistency, be an undue hardship standard. Thus, a general rule of broad application could only be justified as a BFOR if the individualized assessment would cause undue hardship to the employer.

39. It is further submitted that applying such a test to the BFOR defence is fully consistent with the case law to date, with the requirements of the Charter, with the purpose of human rights legislation in general and with the need for a BFOR type defence, in particular.

    E. ISSUE FOUR: RISK

40. Clearly, risk is one of the factors which is of potential relevance in determining either undue hardship or whether the requirements of a BFOR are met. The Intervenors submit that the risk must be real - rather than perceived or feared - before it can be taken into account. Further, the risk must also be substantial compared to other risks accepted in the particular work environment involved. On this issue, the Intervenors support the position advanced in paragraphs 53-59 of the Canadian Human Rights Commission's factum.

41. In determining the extent to which the risk involved may excuse an employer's otherwise discriminatory treatment, it is relevant to consider not only the magnitude of the risk but also the identity of the person or persons who will bear the risk.

    Central Alberta Diary Pool, supra, p. 521, INTERVENORS' BOOK OF AUTHORITIES, VOLUME I, TAB 2.

42. It is submitted that where the risk is to the disabled individual him or herself, great care must be taken to avoid paternalistic judgments about the choices persons with disabilities make for themselves and their right to make them. In situations where the persons with the disability knowingly and willingly assumes some degree of risk, deference should be given to that person's right to exercise such an option, particularly where the degree of risk is not extreme.

    Kelly v. VIA Rail Canada (1980), 1 C.H.R.R. D/97, INTERVENORS' BOOK OF AUTHORITIES, VOLUME II, TAB 9.

43. The concept of individual autonomy is fundamental to the common law. Similarly, the right to self-determination and to make one's own decisions about matters fundamental to one's life and persons have been recognized as among the rights deserving of protection by the Charter.

    Rodriguez, per Sopinka, J. at p. 10 and 23, INTERVENORS' BOOK OF AUTHORITIES, VOLUME III, TAB 17 (B).

    Rodriguez, per Lamer, C.J.C. at p. 26 and 32-33, INTERVENORS' BOOK OF AUTHORITIES, VOLUME III, TAB 17 (D).

    Ciarlariello v. Schacter, [1993] 2 S.C.R. 119 at p. 135, INTERVENORS' BOOK OF AUTHORITIES, VOLUME II, TAB 7.

    R. v. Morgentaler, [1988] 1 S.C.R. 30 at pp. 166, 171, 178, INTERVENORS' BOOK OF AUTHORITIES, VOLUME II, TAB 12.

44. An analysis of the history of disability-based discrimination and the movement towards its eradication demonstrates the impact of inappropriate paternalistic attitudes as a barrier to equality. Often the discrimination faced by persons with disabilities has been perpetuated by others who believe they are acting in the disabled person's "best interests", that the opportunity being denied is really "not good for him" and that the disabled persons must be "protected" from making the wrong choices for himself. While not motivated by malevolence, attitudes which are paternalistic and patronizing to persons with disabilities are nevertheless a very real barrier to equality.

    TAB 34. Equality Rights and the Canadian Charter of Rights and Freedoms, (Toronto: Carswell, 1985), pp. 323-376 at p. 326 INTERVENORS' BOOK OF AUTHORITIES, VOLUME IV, TAB 31.

    Report of the Commission of Inquiry into the "Confidentiality of Health Information" (Vol. 1) by the Hon. Mr. Justice Horace Krever (Toronto: J.C. Thatcher, Queen's Printer, September 1980), at pp. 9-10, INTERVENORS' BOOK OF AUTHORITIES, VOLUME IV, TAB 32.

    Accommodating the Spectrum of Individual Abilities, supra, pp. 22-27, INTERVENORS' BOOK OF AUTHORITIES, VOLUME IV, TAB 33.

    TAB 30.

45. The issue of paternalistic attitudes as a barrier to equality has been dealt with in a number of cases involving the denial of employment opportunities to women because of protectionist and paternalistic attitudes. Courts have consistently determined that such attitudes are inconsistent with equality and cannot excuse discrimination.

    Proving Discrimination in Canada, (Toronto: Carswell, 1987) pp. 134-135, pp. 208-209, INTERVENORS' BOOK OF AUTHORITIES, VOLUME IV, TAB 36.

    Weeks v. Southern Bell Telephone & Telegraph Co., 408 F. 2d 228 (5th Cir. 1969), p. 236, INTERVENORS' BOOK OF AUTHORITIES, VOLUME IV, TAB 20.

46. Similarly, it is submitted that paternalistic determinations that a risk to disabled person ought not be assumed by him or her should not be sufficient to warrant denial of employment opportunities. Rather, the choice of whether to assume that personal risk as opposed to losing employment altogether, should be that of the individual, not the employer.

    Human Rights Code", supra, pp. 12-15, INTERVENORS' BOOK OF AUTHORITIES, VOLUME IV, TAB 29.

47. In Inco Metals Company, Ontario Division, a Board of Inquiry appointed under the Ontario Human Rights Code 1980 held that the purpose of human rights legislation is "to prevent the assessment of persons according to stereotypical assumptions about the class to which they belong". In that case, the complainant successfully argued that the employer's policy of refusing to permit female employees of child-bearing age to occupy certain occupations in the company was discriminatory on the basis of sex. The employer feared that the existence of certain chemicals in the workplace might harm a fetus in pregnant employees. The Board weighed the occupational health and safety issues and ultimately concluded that it was the female employee's decision to bear the risk of working, which was held to be minor, and not the employer's.

    In my opinion, considering all the evidence "reasonableness" applied to the instant factual situation dictates a balancing of the interests between fetal protection and a female employee's right to equality of opportunity in employment, in favour of the complainant and not the employer.

    It is more in keeping with equality objectives to allow the individual the informed choice of accepting the very slight risk or rejecting the very slight risk in favour of alternative employment.

    Wiens v. Inco Metals Company, Ontario Division, (1988), 9 C.H.R.R. D/4795 (Ont. Board of Inquiry), pp. D/4819, INTERVENORS' BOOK OF AUTHORITIES, VOLUME IV, TAB 21.

48. A recent decision of a New Brunswick labour arbitration tribunal, Wholesale and Department Store Union, Local 1065 v. T.C.C. Bottling Company Limited, addresses the issue of risk to an employee posed by his own disability. A man with mild epilepsy had most his job because he had experienced two epileptic seizures while at work. It was accepted that the complainant would most likely have more seizures if he returned to work. The arbitrator ruled that there had been discrimination by the employer and then considered the issues of accommodation and undue hardship. In dealing with the issue of the risk to the complainant, the arbitrator ruled:

    Is the danger to the disabled persons so great that he or she is to be denied the right to equality of opportunity to work? The determination of the limits of the employer's duty to accommodate to the point of undue hardship necessarily involve that balance…I have concluded that the grievor must, in the end, be the one who decides whether to run the risks associated with even the safest jobs that he is qualified to do in the employer's plant. Every day in his off-work life he faces the possibility that if he has a seizure he will fall on his face on the sidewalk, fall in front of a car, or bump into something hard and injure himself. He decides how to limit his activities because of those possibilities.

    In the result, the arbitrator ordered reinstatement of the employee.

    Retail, Wholesale and Department Store Union Local 1065 v. T.C.C. Bottling Limited, (January 17, 1993), (decision of Innis Christie, Arbitrator, (New Brunswick) [unreported], pp. 26-27, 28 INTERVENORS' BOOK OF AUTHORITIES, VOLUME III, TAB 15.

49. It is therefore submitted that an employer's concern about a risk to the employee should be given very little weight in assessing whether the undue hardship standard is met, particularly when the magnitude and implications of the risk are not extreme and when the risk is considered in light of other risks already assumed in the workforce.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

_______________________

ANNE M. MOLLOY

_________________________

GERARDUS Y. HEDDEMA

Of Counsel for the Intervenors

Canadian AIDS Society,
Coalition of Provincial Organizations of theHandicapped (COPOH) and
Canadian Disability Rights Council

PART V - AUTHORITIES

Cases

1. Action Travail des Femmes v. Canadian National Railway Company et al., [1987] 1 S.C.R. 114

2. Alberta Human Rights Commission v. Central Alberta Dairy Pool et al., [1990] 2 S.C.R. 489

3. Law Society of British Columbia, [1989] 1 S.C.R. 143

4. Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561

5. Canada Safeway Ltd., [1989] 1 S.C.R. 1219

6. Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554

7. Ciarlariello v. Schacter, [1993] 2 S.C.R. 119

8. Commission des droits de la personne du Québec v. Town of Brossard and Line Laurin, 2 S.C.R. 279

9. VIA Rail Canada (1980), 1 C.H.R.R. D/97

10. Ontario Human Rights Commission v. Borough of Etobicoke, [1982] 1 S.C.R. 202

11. Ontario Human Rights Commission and O'Malley v. Simpson-Sears Ltd., [1985] 2 S.C.R. 536

12. R. v. Morgentaler, [1988] 1 S.C.R. 30

13. R. v. Oakes, [1986] 1 S.C.R. 1037

14. Re Blainey and Ontario Hockey Association et al. (1986), O.R. (2d) 513 (C.A.)

15. Retail, Wholesale and Department Store Union Local 1065 v. T.C.C. Bottling Limited, (January 17, 1993), (decision of Innis Christie, Arbitrator (New Brunswick) [unreported]

16. Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84

17. Rodriguez v. British Columbia (Attorney General), (September 30, 1993), (S.C.C.) [unreported]

18. Saskatchewan (Human Rights Commission) v. Saskatoon Firefighters, [1989] 2 S.C.R. 1297

19. Slaight Communications Inc., v. Davidson, [1989] 1 S.C.R. 1038

20. Weeks v. Southern Bell Telephone & Telegraph Co., 408 F. 2d 228 (5th Cir. 1969)

21. Inco Metals Company, Ontario Division (1988) C.H.R.R. D/4795 (Ont. Board of Inquiry)

22. Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321

Legislation

23. Americans with Disabilities Act of 1990, July 26, 1990, Pub. L. No. 101-336, ss. 101(10), 102(a), (b)

24. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, ss. 15, 52

25. Canadian Human Rights Act, R.S.C. 1985, c. H-6, ss. 7, 15

26. Ontario Human Rights Code, R.S.O. 1990, c. H. 19, ss. 11, 17

27. Saskatchewan Human Rights Code, S.S. 1979, c. S-24. 1, ss. 16, 31(9)

28. Yukon Human Rights Act, R.S.Y. 1986, Supp. c. 11, s. 7

Governmental Reports and Scholarly Materials

29. "Guidelines for Assessing Accommodation Requirements for Persons with Disabilities Under the Ontario Human Rights Code, 1981, as Amended", Ontario Human Rights Commission, 1989

30. Lepofsky, David M., "Equality Rights for Handicapped Persons in the Charter: Putting the Accent on Individual Ability", a paper prepared in conjunction with a lecture given to the Cambridge Lecture Series, Cambridge University, Cambridge, England on July 16, 1985

31. Lepofsky, D. and Bickenbach, J., "Equality Rights and the Physically Handicapped" (Toronto: Carswell Co. Ltd., 1985), A Bayefsky and M. Eberts, eds., Equality Rights and the Canadian Charter of Rights and Freedoms, (Toronto: Carswell, 1985), pp. 323-376

32. Report of the Commission of Inquiry into the "Confidentiality of Health Information" (Vol. 1) by the Hon. Mr. Justice Horace Krever (Toronto: J.C. Thatcher, Queen's Printer, September 1980), pp. 9-10

33. Report of the United States Commission on Civil Rights, Accommodating the Spectrum of Individual Abilities (Washington: Clearinghouse Publication 81, September 1983), pp. 22-27, 86-101, 162

34. Rioux, Marcia, "The Contradiction of Kindness; the Clarity of Justice" (Toronto: L'Institut Roeher Institute, 1993)

35. Royal Commission Report, Equality in Employment by Judge Rosalie Silberman Abella (as she then was) (Ottawa: Canadian Government Publishing Centre Supply and Services, 1984) pp. 38-46

36. Vizkelety, Béatrice, Proving Discrimination in Canada, (Toronto: Carswell, 1987) pp. 134-135, pp. 208-209