A-543-81
Canadian National Railway Company (Applicant)
v.
Canadian Human Rights Commission and K. S.
Bhinder (Respondents)
Court of Appeal, Heald, Le Dain JJ. and Kelly
D.J.-Toronto, September 30, 1982; Ottawa,
April 13, 1983.
Human rights - Rule that railway yard worker wear hard
hat contrary to religious practices of employee - No dis
crimination under s. 7 of Canadian Human Rights Act in
absence of discriminatory intention or differential treatment
- S. 10 of Act not prohibiting indirect discrimination
Safety rule a bona fide occupational requirement under s.
14(a) of Act as defined in Ontario Human Rights Commission,
et al. v. Borough of Etobicoke, [1982] 1 S.C.R. 202 - Duty on
employer to accommodate religious beliefs of employee if no
undue hardship on business an American principle inappli
cable to Canadian legislation - Canadian Human Rights Act,
S.C. 1976-77, c. 33, ss. 2, 3, 7, 10, 14(a), 22(2) (rep. and sub.
1977-78, c. 22, s. 5), 39(1), 41(2) (as am. by S.C. 1980-81-82-
83, c. 143, s. 20), (3) - Civil Rights Act of 1964, 42 U.S.C. §.
2000e-2a(2) (1970 ed.); idem, 42 U.S.C. (Supp. 11 1972),§.
2000e(j) - Ontario Human Rights Code, R.S.O. 1970, c. 318,
s. 4(1)(a),(b),(g) (as am. by S.O. 1972, c. 119, s. 5), (6) -
Ontario Human Rights Code, R.S.O. 1980, c. 340, s. 4(1)(g),(6)
- Human Rights Code, 1981, S.O. 1981, c. 53, s. 10 -
Canada Labour Code, R.S.C. 1970, c. L-1, ss. 81, 82, 84(1)(g)
- Human Rights Act, S.P.E.I. 1975, c. 72, s. 2(a) - Human
Rights Code, R.S.B.C. 1979, c. 186, s. 3 - Sex Discrimination
Act 1975, 1975, c. 65 (U.K.), s. 1(1)(a),(b) - Race Relations
Act 1976, 1976, c. 74 (U.K.), s. 1(1) - Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 28 - Canada Protective
Clothing and Equipment Regulations, C.R.`C., c. 1007, ss. 3, 8,
9 - Canada Electrical Safety Regulations, C.R.C., c. 998, ss.
2(1), 3, 17, 18.
In 1978, Canadian National adopted a safety policy pursuant
to the Canada Labour Code and its regulations, requiring
maintenance electricians working in its Toronto Coach Yard to
wear a hard hat. The respondent individual, a Sikh who had
been working there since 1974, refused to comply because his
religion requires the wearing of a turban and forbids wearing
anything else on the head. His employment with CN effectively
came to an end upon his refusal to wear a hard hat.
The Human Rights Tribunal found that CN had engaged in
a discriminatory practice contrary to the Canadian Human
Rights Act and, inter alla, ordered it to reinstate him as a
maintenance electrician with an exemption from its safety hat
requirement. CN seeks to have this decision reviewed and set
aside under section 28 of the Federal Court Act.
Held (Le Dain J. dissenting), the application should be
allowed and the decision and orders of the Tribunal set aside.
Per Heald J.: Section 7 of the Canadian Human Rights Act
contemplates only direct discrimination and does not extend to
discrimination where there is no discriminatory intention or
motivation. Section 10 is not sufficiently comprehensive to
include the effect of indirect discrimination. In view of the
different wording of the equivalent legislation in the United
States, the adverse effect concept of discrimination developed
in American case law cannot be applied in Canada.
In addition, the safety policy meets the good faith and
reasonable necessity tests imposed by the Supreme Court of
Canada in the unanimous judgment delivered by McIntyre J. in
Ontario Human Rights Commission, et al. v. Borough of
Etobicoke, [1982] 1 S.C.R. 202, and thus qualifies as a bona
fide occupational requirement so as to afford it the protection
of paragraph 14(a) of the Act. As for the American principle
recognizing a duty to accommodate the religious beliefs and
practices of employees if this can be done without undue
hardship, in the absence of specific words to that effect in the
applicable provisions, that concept cannot be, read into the
legislation.
Per Kelly D.J. (concurring in the result): While the Tribunal,
in performing a judicial or quasi-judicial function, was called
upon to construe the legislation by which it is governed, it
appears in the present case to have enlarged its commitment to
encompass areas not specifically committed to it. Since Parlia
ment has not said so expressly, it cannot be assumed that where
any possible conflict arises between human rights and any other
statutory or regulatory provision, human rights must prevail.
Per Le Dain J. (dissenting): The question is not so much
whether a discriminatory intention or motivation is required for
the discriminatory practices defined by sections 7 and 10 of this
Act, as whether they include indirect as well as direct discrimi
nation. Section 7 does not extend to discrimination involving
neither a discriminatory intention or motivation nor differential
treatment. Containing the words "that deprives or tends to
deprive", section 10, on the other hand, is sufficiently compre
hensive to include the effect of indirect discrimination. Para
graph 703(a)(2) of the United States Civil Rights Act of 1964,
which was the statutory basis for application of the adverse
effect concept of discrimination in the Supreme Court of the
United States decision in the Griggs case, contained essentially
the same words and its interpretation in that case has persua
sive value in the construction of section 10.
As a matter of law, it was open to the Tribunal to consider
that the duty to accommodate is a necessary aspect of the
application of the exception of bona fide occupational require
ment. The application of the various factors to be considered in
examining whether the policy is reasonably necessary and
whether there is in the circumstances a duty to accommodate
the religious practices of the employee involves what are essen-
tially questions of fact and, to some extent, of human rights
policy. The Court should not disturb the Tribunal's findings in
this regard since they were not made "in a perverse or capri
cious manner or without regard to the material before it". Nor
should the Court lightly interfere with what is essentially a
question of human rights policy in the application of the
principles or criteria which Human Rights Tribunals have
developed as a distinct body of jurisprudence. The determina
tion of the issue of unusual hardship falls within that broad
area of human rights policy that must as a matter of law be left
to such a Tribunal in determining whether there is a duty to
accommodate in a particular case.
In view of the primacy of the human rights legislation, the
Tribunal necessarily had the jurisdiction to consider the
application of the Code and the regulations in this case, as well
as the various issues of safety and risk, in determining whether
there was in all the circumstances a duty to accommodate the
religious practices of the employee.
CASES JUDICIALLY CONSIDERED
APPLIED:
Ontario Human Rights Commission, et al. v. Borough of
Etobicoke, [1982] 1 S.C.R. 202; 132 D.L.R. (3d) 15.
DISTINGUISHED:
Griggs v. Duke Power Co., 401 U.S. 424 (1971) (S.C.);
Re Rocca Group Ltd. and Muise (1979), 102 D.L.R.
(3d) 529 (P.E.I.S.C.).
REFERRED TO:
Ontario Human Rights Commission et al. v. Simpsons-
Sears Ltd. (1982), 38 O.R. (2d) 423 (C.A.) (affirming
36 O.R. (2d) 59 (Div. Ct.)); Singh v. Rowntree Mackin
tosh Ltd., [1979] I.C.R. 554 (E.A.T. Scot.); Panesar v.
Nestlé Co. Ltd., [1980] I.C.R. 144 (Eng. C.A.); Re
Attorney-General for Alberta and Gares et al. (1976), 67
D.L.R. (3d) 635 (Alta. S.C.T.D.); Gay Alliance Toward
Equality v. Vancouver Sun, [1979] 2 S.C.R. 435; Dewey
v. Reynolds Metal Company, 429 F.2d 324 (6th Cir.
1970) (affirmed, 402 U.S. 689 (1971) (S.C.)); Insurance
Corporation of British Columbia v. Heerspink et al.,
[1982] 2 S.C.R. 145; 137 D.L.R. (3d) 219; Trans World
Airlines, Inc. v. Hardison et al., 432 U.S. 63 (1977)
(S.C.); Re Newport and Government of Manitoba
(1982), 131 D.L.R. (3d) 564.
COUNSEL:
L. L. Band, Q.C. and G. Poppe for applicant.
R. G. Juriansz for respondent Canadian
Human Rights Commission.
I. Scott, Q.C. and Raj Anand for respondent
K. S. Bhinder.
I. G. Whitehall, Q.C. and J. McCann for
Attorney General of Canada.
SOLICITORS:
Canadian National Legal Section, Toronto,
for applicant.
Legal Counsel, Canadian Human Rights
Commission for respondent Canadian Human
Rights Commission.
Cameron, Brewin & Scott, Toronto, for
respondent K. S. Bhinder.
Deputy Attorney General of Canada for
Attorney General of Canada.
The following are the reasons for judgment
rendered in English by
HEALD J.: I have had the advantage of reading
the reasons for judgment herein of my brother Le
Dain J. With deference, I am unable to agree with
the result which he proposes.
Le Dain J. has, in my view, accurately and
concisely summarized the facts relevant to a deter
mination of the issues raised by this application
and I will only supplement them to the extent
necessary for these reasons. I agree also with his
references to the relevant provisions of the appli
cable statutes and regulations. I agree further with
his conclusion that section 7 of the Canadian
Human Rights Act [S.C. 1976-77, c. 33] contem
plates only direct discrimination and does not
extend to discrimination in which there is neither a
discriminatory intention or motivation nor differ
ential treatment. Since the Tribunal found that the
appellant did not have a discriminatory intention
or motivation in applying its safety hat require
ment to the respondent Bhinder, it is my opinion
that the Tribunal erred in finding a breach of
section 7 in the circumstances of this case.
I do not, however, agree with Mr. Justice Le
Dain's view that section 10 of the Canadian
Human Rights Act is sufficiently comprehensive
to include the effect of indirect discrimination. The
decision of the Supreme Court of the United
States in the case of Griggs v. Duke Power Co.,
401 U.S. 424 (1971) [S.C.] to which he refers, has
been the subject of much editorial and judicial
comment, and has been characterized as a land-
mark decision because it approves the following
concept of discrimination:
Discrimination consists of conduct that has an adverse effect on
minority group members as compared to majority group mem
bers. Defence of justification for compelling reasons of business
necessity is recognized.'
In discussing this principle of liberal construction,
Professor Blumrosen observed that it "requires an
anchor" and that the anchor lies in paragraph
703(a)(2) of Title VII of the Civil Rights Act of
1964 [42 U.S.C., §. 2000e-2a(2) (1970 ed.)]. He
goes on to state that:
This provision makes it unlawful for an employer to "adversely
affect" an individual's employment status because of race,
color, religion, sex or national origin. The "adversely affect"
language has an obscure genesis. It was not part of the original
New York fair employment law, and thus presents a technically
new point of departure for purposes of statutory interpretation.
It suggests that a Court's focus of attention should be more on
the consequences of actions than on the actor's state of mind. 2
Paragraph 703(a)(2) of the Civil Rights Act of
1964 provided that:
703. (a) It shall be an unlawful employment practice for an
employer—
(2) to limit, segregate, or classify his employees in any way
which would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely affect his
status as an employee, because of such individual's race, color,
religion, sex, or national origin.
Section 10 of the Canadian Human Rights Act 3
uses the words "deprives or tends to deprive" but
' This is a quotation from an article by Alfred W. Blumros-
en, Professor of Law, Rutgers University, Chief of Concilia-
tions, United States Equal Employment Opportunity Commis
sion (1965-67). Michigan Law Review, Vol. 71, p. 67.
2 Michigan Law Review, Vol. 71, p. 74.
3 Section 10 reads as follows:
10. It is a discriminatory practice for an employer or an
employee organization
(a) to establish or pursue a policy or practice, or
(b) to enter into an agreement affecting recruitment,
referral, hiring, promotion, training, apprenticeship, trans
fer or any other matter relating to employment or prospec
tive employment,
that deprives or tends to deprive an individual or class of
individuals of any employment opportunities on a prohibited
ground of discrimination.
the words "or otherwise adversely affect" are not
present in the Canadian section. With respect, I do
not agree that section 10, absent those words, and
when considered in the context of the Act as a
whole, is capable of the same construction as
paragraph 703(a)(2) supra. Section 2 of the
Canadian Act 4 provides that while an individual
has the right to live the life that he or she is able
and wishes to, he or she can only do so in circum
stances "... consistent with his or her duties . .. as
a member of society ...". It also refers to ".. .
discriminatory practices based on ... religion ...".
(Emphasis added.) Additionally, paragraph 14(a)
makes this right of an individual subject to an
employer's right to impose bona fide occupational
requirements pertaining inter alia to the safe and
efficient operation of its business undertaking. I
attach significance to the absence of the words "or
. adversely affect" in the Canadian legislation
and because of their absence, the Griggs case
supra, in my opinion, loses its persuasive value.
Had Parliament intended, in section 10, to provide
for "adverse effect" legislation in the absence of
intent, apt words could and should have been
incorporated into the section.' In their absence, I
° Section 2 defines the purpose of the Canadian Human
Rights Act and reads:
2. The purpose of this Act is to extend the present laws in
Canada to give effect, within the purview of matters coming
within the legislative authority of the Parliament of Canada,
to the ... [principle that]:
(a) every individual should have an equal opportunity with
other individuals to make for himself or herself the life
that he or she is able and wishes to have, consistent with
his or her duties and obligations as a member of society,
without being hindered in or prevented from doing so by
discriminatory practices based on race, national or ethnic
origin, colour, religion, age, sex or marital status, or
conviction for an offence for which a pardon has been
granted or by discriminatory employment practices based
on physical handicap;...
' An example of the clear and explicit language which I think
would be necessary, having regard to the other sections of the
Canadian Human Rights Act referred to supra, is to be found
in the 1982 amendment to the Ontario Human Rights Code
[R.S.O. 1980, c. 340, rep. and sub. by Human Rights Code,
1981, S.O. 1981, c. 53] (s. 10) which is discussed by Lacour-
cière J.A. in the case of Ontario Human Rights Commission et
al. v. Simpsons-Sears Ltd. [(1982), 38 O.R. (2d) 423 (C.A.)].
The 1982 amendment to the Ontario Code provides:
10. A right of a person under Part I is infringed where a
requirement, qualification or consideration is imposed that is
not discrimination on a prohibited ground but that would
result in the exclusion, qualification or preference of a group
(Continued on next page)
do not agree that on the basis of section 10 supra,
the Tribunal was justified in concluding that the
applicant had prima facie engaged in a discrimina
tory practice in this case.
Having concluded that the Tribunal was in error
in respect of its application of the provisions of
sections 7 and 10 of the Act to the facts of this
case, it is likely unnecessary to proceed to discuss
the other issues raised herein since, if I am correct,
this conclusion is sufficient to warrant setting
aside the Tribunal's decision. However, because
the other issues were extensively and ably argued
before us, and because in the result which I pro
pose, namely, a reference back to the Tribunal
with directions, I think it advisable to deal as well
with the second issue discussed by my brother Le
Dain J.
The second issue is whether the Tribunal erred
in concluding that the applicant's safety hat policy
was not a bona fide occupational requirement
within the meaning of paragraph 14(a) of the
Canadian Human Rights Act. 6 Before the Tri
bunal there was considerable uncontradicted
expert evidence to the following effect:
(a) in the Toronto Coach Yard where the
respondent Bhinder was employed as an electri
cian, the work place was dangerous and the
work performed by Bhinder was also dangerous;
(b) the wearing of a safety hat by an employee
in the Toronto Coach Yard would prevent or
appreciably lessen the severity of head injuries;
(Continued from previous page)
of persons who are identified by a prohibited ground of
discrimination and of whom the person is a member, except
where,
(a) the requirement, qualification or consideration is a
reasonable and bona fide one in the circumstances; or
(b) it is declared in this Act that to discriminate because
of such ground is not an infringement of a right.
[Emphasis added.]
6 Paragraph 14(a) states:
14. It is not a discriminatory practice if
(a) any refusal, exclusion, expulsion, suspension, limita
tion, specification or preference in relation to any employ
ment is established by an employer to be based on a bona
fide occupational requirement;
(c) for Bhinder's own safety, it was reasonable
and necessary that he wear a C.S.A. approved
safety hat; and
(d) the requirement by the applicant that its
employees in the Toronto Coach Yard wear
such hats when working at, about, or under the
Turbo Train and the repair tracks was based
upon practical realities and was supported in
fact and reason from a safety point of view.
Based on this and other evidence, the Tribunal
made the following findings of fact:
(1) that the applicant bore no ill will toward
Sikhs or the Sikh faith; that there was no inten
tion to insult or act with malice towards Mr.
Bhinder; that its safety hat policy was adopted
simply to facilitate the carrying on of its busi
ness and, consequently, that the applicant did
not have the intention or motive of discriminat
ing against Mr. Bhinder because of his religion
(Case, Vol. XV, p. 1587);
(2) that the applicant's policy was not based on
a stereotype or unjustified prejudice (Case, Vol.
XV, p. 1649);
(3) that doubtless Mr. Bhinder would be sub
jected to a greater likelihood of injury by non
compliance with the safety hat policy and that
generally speaking, if an exemption were given
to Mr. Bhinder and thus, presumably, to all
Sikhs, the applicant's accident rate and the
resultant compensation payable to employees,
would likely increase (Case, Vol. XV, p. 1689);
and
(4) that the safety hat policy was, for the most
part, a good one that would undoubtedly better
ensure the employees' safety and reduce on the
whole the applicant's compensation liability
(Case, Vol. XV, p. 1695).
It is my opinion that the tests enunciated by the
Supreme Court of Canada in the case of Ontario
Human Rights Commission, et al. v. Borough of
Etobicoke 7 should be applied in deciding the issue
as to whether or not applicant's safety hat policy
was a bona fide occupational requirement as that
term is used in paragraph 14(a) supra. In the
Etobicoke case supra the issue was whether a
provision for the mandatory retirement of munic
ipal fire fighters at the age of 60 was a bona fide
occupational requirement for the position within
the meaning of subsection 4(6) of the Ontario
Human Rights Code, R.S.O. 1970, c. 318. McIn-
tyre J. in delivering the unanimous judgment of
the Court imposed a twofold test: the first, being
subjective, was that the requirement "... must be
imposed honestly, in good faith, and in the sincere
ly 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 rea
sons aimed at objectives which could defeat the
purpose of the Code". The second test is an objec
tive one and is to the effect that the requirement
"... 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".
Turning now to the first test as expressed supra,
it seems evident that from the findings of fact
made by the Tribunal and as summarized supra,
each and every component of the subjective test
has been satisfied in this case. Likewise, based on
the uncontradicted expert evidence as summarized
supra, together with the Tribunal's findings of fact
supra, I am satisfied that the objective test has
been substantially met as well. The evidence was
and the Tribunal found that the safety hat require
ment was related to the performance of his
employment by Mr. Bhinder and other employees
in the Toronto Coach Yard because employees not
wearing the safety hats would be more likely to be
injured which would also have the effect of
increasing the employer's liability for compensa
tion. The evidence and the findings herein certain
ly establish that the requirement was "reasonably
necessary" in the interests of efficiency, economy,
and safety at least to the employee concerned. The
Tribunal made no finding that non-compliance
' [[19821 1 S.C.R. 202, at p. 208]; 132 D.L.R. (3d) 15, at pp.
19-20.
with the requirement would endanger the general
public or other employees in any way. However, I
do not consider that the absence of that circum
stance detracts from the applicability of the Etobi-
coke test to the circumstances of the instant case.
When considering the bona fides of the applicant's
safety hat requirement, I think it important to
keep in mind that validly enacted labour legisla
tion (sections 81 and 82 of the Canada Labour
Code, R.S.C. 1970, c. L-1) requires that an
employer protect all of his employees from dangers
and hazards which cannot be eliminated from the
work place and that, pursuant to those statutory
requirements, and the authority contained in para
graph 84(1)(g) of the Code, the Canada Protective
Clothing and Equipment Regulations [C.R.C., c.
1007] and the Canada Electrical Safety Regula
tions [C.R.C., c. 998] were promulgated. It should
also be recalled from the evidence that the Depart
ment of Labour refused a request from the
respondent Commission to exercise its discretion to
the extent necessary to approve the wearing of a
turban in lieu of a safety hat.
As it seems to me, the fact that applicant's
safety hat policy conformed to the policy of the
industry as a whole, that government regulatory
agencies agreed with the policy and refused to
grant an exemption from it provides additional
objective evidence as to the bona fides of that
policy.
For these reasons I have concluded that the
Tribunal erred in not concluding that the appli
cant's safety hat policy was a bona fide occupa
tional requirement so as to afford it the protection
of paragraph 14(a) of the Canadian Human
Rights Act.
The Tribunal in reaching the opposite conclu
sion with respect to paragraph 14(a) adopted the
concept that the applicant had a duty to accommo
date the religious beliefs and practices of Bhinder
by exemption from the safety hat requirement if it
could do so without undue hardship to its business.
As observed by my brother Le Dain J., this con
cept has been borrowed from American law and
specifically from a provision in a 1972 amendment
[42 U.S.C., §. 2000e(j) (Supp. II 1972)] to Title
VII of the Civil Rights Act of 1964 which
imposed, in subsection 701(j) that specific duty.
In my respectful view, the Tribunal was in error
in reading into Canadian legislation a provision
which is clearly and patently not there. As stated
earlier herein, the proper tests to be applied in
respect of paragraph 14(a) are those laid down by
the Supreme Court of Canada in the Etobicoke
case supra. Those tests make no mention of a duty
to accommodate on the part of the employer. Had
Parliament intended to impose such an additional
obligation, it could and would have done so in
clear and unmistakable language. In the absence
of such language, it would be wrong for the Court,
in my view, to usurp the function of Parliament
under the guise of judicial interpretation.
Accordingly, I would allow the section 28
application and set aside the decision and orders of
the Tribunal. I would also refer the matter back to
the Tribunal for disposition on the basis that the
applicant's requirement for the respondent Bhin-
der to wear a safety hat while working at the
Toronto Coach Yard was not a discriminatory
practice within the meaning of the Canadian
Human Rights Act.
* * *
The following are the reasons for judgment
rendered in English by
LE DAIN J. (dissenting): This is a section 28
application to review and set aside the decision of
a Human Rights Tribunal under the Canadian
Human Rights Act, S.C. 1976-77, c. 33, by which
the applicant Canadian National Railway Com
pany ("CN") was found to have discriminated
against the respondent Bhinder on the ground of
religion by requiring him, as a condition of
employment, to wear a safety hat (or "hard hat",
as it is generally called) when his religion as a Sikh
requires him to wear a turban and forbids him to
wear anything else on his head.
Bhinder began his employment with CN in
April, 1974, and after a period of probation
worked for more than four years as a maintenance
electrician in its Toronto Coach Yard servicing the
Turbo Train between the hours of 11 p.m. and 7
a.m. On November 30, 1978 CN announced that
effective December 1, 1978 all employees working
in the Toronto Coach Yard would have to wear a
hard hat. Bhinder informed his foreman that he
could not do so because of his religion. A letter
dated December 5, 1978 from the General Fore
man, R. E. Barratt, informed Bhinder that there
would be no exceptions to the hard hat require
ment in the Toronto Coach Yard, that he would be
required to wear one from 11 p.m. on December 6,
1978, and that if he did not do so he would not be
permitted to work. As a result he did not work as a
maintenance electrician for CN after December 5,
1978. He was not prepared to work as other than
an electrician, and there were no positions avail
able in which an electrician could work without a
hard hat. His employment with CN effectively
came to an end upon his refusal to wear a hard
hat.
On December 7, 1978 Bhinder lodged a com
plaint of discrimination on the ground of religion
with the Canadian Human Rights Commission.
On October 3, 1979 the Commission, pursuant to
subsection 39(1) of the Act, appointed a Human
Rights Tribunal composed of Peter Cumming,
Mary Eberts and Joan Wallace. The Tribunal,
under the chairmanship of Professor Cumming,
conducted a hearing of several days in December,
1979, at which evidence, including expert testimo
ny, was adduced. Written submissions were filed
after the hearing, and the Tribunal rendered its
decision on September 22, 1981. In comprehensive
reasons of some one hundred and sixty pages it
analyzed the issues of fact and law and reviewed
the relevant human rights jurisprudence in great
detail. The Tribunal found that CN had engaged
in a discriminatory practice contrary to the Act,
awarded Bhinder compensation in the amount of
$14,500 for loss of salary, and ordered CN to
reinstate him, if he so wished, in the position of
maintenance electrician with an exemption from
its safety hat requirement and the same seniority
and rate of pay as if he had continued to work as a
maintenance electrician after December 5, 1978.
The complaint of discrimination is based on
sections 7 and 10 of the Canadian Human Rights
Act, which are as follows:
7. It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual,
or
(b) in the course of employment, to differentiate adversely in
relation to an employee,
on a prohibited ground of discrimination.
10. It is a discriminatory practice for an employer or an
employee organization
(a) to establish or pursue a policy or practice, or
(b) to enter into an agreement affecting recruitment, refer
ral, hiring, promotion, training, apprenticeship, transfer or
any other matter relating to employment or prospective
employment,
that deprives or tends to deprive an individual or class of
individuals of any employment opportunities on a prohibited
ground of discrimination.
Section 3 defines prohibited grounds of discrimi
nation as follows:
3. For all purposes of this Act, race, national or ethnic origin,
colour, religion, age, sex, marital status, conviction for which a
pardon has been granted and, in matters related to employ
ment, physical handicap, are prohibited grounds of discrimina
tion.
Paragraph 14(a) is also relevant and reads as
follows:
14. 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
occupational requirement;
Other provisions of law which must be con
sidered in relation to the issues raised by the
section 28 application are certain safety provisions
of the Canada Labour Code, R.S.C. 1970, c. L-1,
and the following regulations made under the au
thority of the Code: the Canada Protective Cloth
ing and Equipment Regulations, C.R.C., c. 1007
(hereinafter referred to as "the protective clothing
regulations") and the Canada Electrical Safety
Regulations, C.R.C., c. 998 (hereinafter referred
to as "the electrical safety regulations").
Sections 81 and 82 of the Code, which impose a
duty on employers and employees with respect to
safety in federal undertakings, read in part as
follows:
81. (1) Every person operating or carrying on a federal work,
undertaking or business shall do so in a manner that will not
endanger the safety or health of any person employed there
upon or in connection therewith.
(2) Every person operating or carrying on a federal work,
undertaking or business shall adopt and carry out reasonable
procedures and techniques designed or intended to prevent or
reduce the risk of employment injury in the operation or
carrying on of the federal work, undertaking or business.
82. Every person employed upon or in connection with the
operation of any federal work, undertaking or business shall, in
the course of his employment,
(a) take all reasonable and necessary precautions to ensure
his own safety and the safety of his fellow employees; and
(b) at all appropriate times use such devices and wear such
articles of clothing or equipment as are intended for his
protection and furnished to him by his employer, or required
pursuant to this Part to be used or worn by him.
Paragraph 84(1)(g) of the Code confers author
ity on the Governor in Council to make regulations
with respect to safety as follows:
84. (1) Subject to any other Act of the Parliament of Canada
and any regulations thereunder, the Governor in Council may
make regulations for the safety and health of persons employed
upon or in connection with the operation of any federal work,
undertaking or business and for the provision therefor of safety
measures in the operation or use of plants, machinery, equip
ment, vehicles, materials, buildings, structures and premises
used or to be used in connection with the operation of any
federal work, undertaking or business and in particular, but
without restricting the generality of the foregoing, may make
regulations
(g) prescribing the standards for protective clothing and
equipment to be used by employees and the use of, and the
responsibility for providing, such clothing and equipment;
The relevant provisions of the protective cloth
ing regulations are sections 3, 8 and 9, which are
as follows:
3. Where
(a) it is not reasonably practicable to eliminate an employ
ment danger or to control the danger within safe limits, and
(b) the wearing or use by an employee of personal protective
equipment will prevent an injury or significantly lessen the
severity of an injury,
every employer shall ensure that each employee who is exposed
to that danger wears or uses that equipment in the manner
prescribed by these Regulations.
8. (1) No employee shall commence a work assignment or
enter a work area where any kind of personal protective
equipment is required by these Regulations to be worn or used
unless
(a) he is wearing or using that kind of personal protective
equipment in the manner prescribed in these Regulations;
(b) he has been instructed and trained in the proper and safe
operation and use of that personal protective equipment
pursuant to section 5; and
(c) he has visually inspected that personal protective equip
ment to ensure, as far as is reasonably practicable, that it will
protect him from the hazards of his employment.
(2) Every employee shall care for all personal protective
equipment assigned to him by his employer in accordance with
the instructions and training given to him pursuant to section 5.
(3) Every employee shall immediately report to the person in
charge any personal protective equipment that, in the opinion
of the employee, no longer adequately protects him from the
hazards of his employment.
9. (1) Where, in order to comply with section 3, an employer
requires an employee to wear a safety hat, that safety hat shall
comply with the recommendations of Canadian Standards
Association Standard Z94.1-1966, as amended from time to
time, or with a standard acceptable to the Division Chief.
(2) Where, in order to comply with section 3, an employer
requires an employee to wear a form of head protection other
than a safety hat, that other form of head protection shall
comply with good industrial safety practice or with a standard
acceptable to the Division Chief.
The relevant provisions of the electrical safety
regulations are the definition of "electrical facili
ty", in subsection 2(1), and sections 3, 17 and 18,
which are as follows:
2. (1) ...
"electrical facility" means any equipment, device, apparatus,
wiring, conductor, assembly or part thereof that is employed
for the generation, transformation, transmission, distribution,
storage, control, measurement or utilization of electrical
energy and that has an ampacity and voltage that is danger
ous to employees; (installation électrique)
3. These Regulations apply
(a) to and in respect of employment upon or in connection
with the operation of any federal work, undertaking or
business, and
(b) to and in respect of employment by a corporation estab
lished to perform any function or duty on behalf of the
Government of Canada
to which the Act applies, other than employment upon or in
connection with the underground operation of any mine.
17. No employer shall permit an employee to work, and no
employee shall work, on an electrical facility
(a) that has not more than 250 volts between any two
conductors, or between any conductor and ground, where
there is a possibility of a dangerous electric shock, or
(b) that has more than 250 volts but not more than 5,200
volts between any two conductors, or not more than 3,000
volts between any conductor and ground,
unless that employee uses such insulated protective clothing
and equipment as is necessary, in accordance with good electri
cal safety practice or as required by a safety officer, to protect
him from injury during the performance of the work.
18. No employer shall permit an employee to work, and no
employee shall work, on an electrical facility that, in accord
ance with good electrical safety practice, requires protective
headwear to be worn unless he is wearing protective headwear
that complies with the Class B requirements of the Canadian
Standards Association Standard Z94.1-1966, as amended from
time to time.
The federal Department of Labour (generally
referred to as "Labour Canada") is responsible for
ensuring compliance with the safety provisions of
the Code and the regulations. In February, 1979,
the Commission, through its Director for Ontario,
Richard Nolan, requested Labour Canada to exer
cise its "discretion" under subsection 9(2) of the
protective clothing regulations and to approve the
wearing of a turban as a sufficient compliance
with the Regulations, but the Regional Director
for Ontario, Thomas Beaton, refused. In his letter
of February 14, 1979 to Nolan he referred to the
success of the head protection program in federal
industries in reducing the incidence and severity of
head injury and to the fact that head injury to a
particular employee can precipitate a situation of
danger for those working closely with him, and he
said that for these and other reasons no "exemp-
tion" could be allowed. In his testimony he said
that if he had a discretion under the protective
clothing regulations to approve an alternative form
of head protection he did not think he had any
such discretion under the electrical safety regula
tions.
The Tribunal found that CN did not have a
discriminatory intention or motivation in applying
its safety hat requirement to Bhinder, but that the
requirement, as applied to him, had a discrimina
tory effect. Although it was applied to all
employees in the Toronto Coach Yard its applica
tion to Bhinder placed him in a different position
because he could not comply with it without violat
ing the tenets of his religion. In its application to
him it thus created a distinction on a basis prohib
ited by the Act. It deprived him of employment
opportunity because of his religion. Because of this
effect the Tribunal held that CN had refused to
continue to employ Bhinder on a prohibited
ground of discrimination within the meaning of
section 7 of the Act and had established or pur
sued a policy or practice that deprived or tended to
deprive him of employment opportunity within the
meaning of section 10.
Having found that there was prima facie a
discriminatory practice, the Tribunal then con
sidered whether CN had established the exception
or defence of bona fide occupational requirement
under paragraph 14(a). The Tribunal concluded
that CN's safety hat requirement, as applied to
Bhinder, was not a bona fide occupational require
ment. I venture to summarize its very full analysis
of this issue as follows. Bhinder could perform the
work satisfactorily while wearing a turban. While
CN's safety hat policy was a good one that
reduced head injury and there would be an
increased risk of head injury to Bhinder if he wore
a turban instead of a hard hat, the increase in risk
was not relatively significant. Moreover, it did not
carry any risk of injury to other employees or the
public. In these circumstances Bhinder should be
permitted to accept the risk of injury to himself
rather than be forced to choose between his reli
gion and his employment. CN had a duty to
accommodate the religious practices of Bhinder by
permitting him to wear a turban instead of a hard
hat if it could do so without undue hardship. As a
Schedule 2 employer under the Ontario Work-
men's Compensation Act, R.S.O. 1980, c. 539,
required to pay compensation directly to
employees, CN would be exposed to an increase in
the cost of compensation if Bhinder and other
Sikhs were permitted to wear turbans instead of
hard hats, but such increased cost was not undue
hardship because it was part of the inherent risk of
employment covered by workmen's compensation.
Even if it was undue hardship, the relative impor
tance of freedom of religion should prevail.
With respect to the safety provisions of the
Canada Labour Code and the protective clothing
and electrical safety regulations, as well as the
authority of Labour Canada thereunder, the Tri
bunal came to the following conclusions. It had
jurisdiction, despite the authority of Labour
Canada and the existence of the safety provisions,
to determine whether CN's safety hat require
ment, as applied to Bhinder, was prima facie a
discriminatory practice, and if so, whether it was a
bona fide occupational requirement. The safety
provisions of the Code and the regulations must be
applied in such a manner as not to contravene the
Canadian Human Rights Act, which, in a case of
conflict, must prevail. Assuming there was a statu
tory obligation created by the Code and the regu
lations to impose the hard hat requirement in the
Toronto Coach Yard, that would not prevent the
requirement, as applied to Bhinder, from being
prima fade a discriminatory practice, nor make it,
as applied to him, ipso facto a bona fide occupa
tional requirement. In the present case, however,
there was no conflict between the provisions of the
Code and the regulations and the accommodation
of Bhinder's religious practices by permitting him
to wear a turban. The Code only required reason
able safety precautions. The turban met the
requirements of the protective clothing regulations
for an alternative form of head protection. The
evidence did not establish a danger of the kind that
would make the electrical safety regulations
applicable.
CN was supported in its attack on the Tribu
nal's decision by the Attorney General of Canada.
Both the Commission and Bhinder were represent
ed by counsel in support of the decision.
It was conceded in argument, as found by the
Tribunal, that CN did not have a discriminatory
intention in applying its safety hat requirement to
Bhinder and that Bhinder's religion required him
to wear a turban and nothing else on his head.
The contentions of counsel for CN and the
Attorney General of Canada, in the order in which
I propose to consider them, may be summarized as
follows:
1. The Tribunal erred in law in holding that
CN's safety hat requirement, although applied
without discriminatory intention or motivation
to all employees in the Toronto Coach Yard,
was nevertheless, as applied to Bhinder, a dis
criminatory practice because of its effect on him
by reason of his religious beliefs.
2. The Tribunal erred in law in holding that
CN's safety hat requirement was not, as applied
to Bhinder, a bona fide occupational require
ment, that CN had a duty to accommodate the
religious practices of Bhinder by permitting him
to wear a turban instead of a hard hat, and that
it could do so without undue hardship to its
business.
3. The Tribunal erred in law or based its deci
sion on erroneous findings of fact made without
regard to the evidence in holding that a turban
met the requirements of the protective clothing
regulations as an alternative head protection and
that the electrical safety regulations did not
apply; and it exceeded its jurisdiction or other
wise erred in law in deciding that a safety
requirement imposed in compliance with a duty
or obligation created by the Code and the regu
lations was, as applied to Bhinder, prima facie a
discriminatory practice and not a bona fide
occupational requirement, and in ordering an
exemption from the requirement for Bhinder
when an exemption had been refused by Labour
Canada.
The application of the safety provisions of the
Code and the regulations obviously bears directly
and immediately on the question whether the Tri
bunal erred in law in holding that CN's safety hat
requirement, as applied to Bhinder, was prima
facie a discriminatory practice and was not a bona
fide occupational requirement, but I find it con
venient to consider their application and effect on
the issues after first considering whether the Tri
bunal erred in its general approach to the meaning
of discrimination under sections 7 and 10 of the
Act and of "bona fide occupational requirement"
under paragraph 14(a).
The first issue, then, is whether sections 7 and
10 of the Act extend to adverse effect or indirect
discrimination, which exists where an employment
requirement or condition that has been adopted
without discriminatory intention or motivation,
and is applied equally, has an adverse effect on an
employee by reason of a prohibited ground of
discrimination. The development of this new con
cept of discrimination in the United States and
Great Britain is well analyzed in Blumrosen,
"Strangers in Paradise: Griggs v. Duke Power Co.
and the Concept of Employment Discrimination"
(1972), 71 Mich. L. Rev. 59; Lustgarten, "The
New Meaning of Discrimination", [1978] Public
Law 178; and Tarnopolsky, Discrimination and
The Law in Canada, 1982, c. IV. Under the
influence of this development the concept of
adverse effect or indirect discrimination has been
applied by human rights tribunals in Canada in a
variety of legislative contexts.
The chief inspiration for adoption of the adverse
effect concept of discrimination has been the case
of Griggs v. Duke Power Co., 401 U.S. 424 (1971)
[S.C.], in which the Supreme Court of the United
States held that certain educational and testing
requirements were unlawful employment practices
under paragraph 703(a)(2) of Title VII of the
Civil Rights Act of 1964 because, although
applied equally to whites and blacks without dis
criminatory intent or purpose, they had the effect
of depriving a disproportionate number of blacks
of employment opportunity by reason of the hand
icaps they already suffered as a result of prior and
general discrimination, and they were not reason
ably related to job performance. Paragraph
703(a)(2) prohibits practices "which would
deprive or tend to deprive any individual of
employment opportunities or otherwise adversely
affect his status as an employee, because of such
individual's race, color, religion, sex, or national
origin". The Court held that the Act was aimed
not only at intentional discrimination but also at
practices which, although neutral on their face,
had the effect of depriving persons of employment
opportunity for reasons directly attributable to
race, and which could not be justified by business
necessity.
Under the influence of Griggs the United King
dom adopted human rights legislation incorporat
ing the adverse effect concept of discrimination,
which is generally referred to by British commen
tators and tribunals as "indirect" discrimination:
see Lustgarten, op. cit., page 178; Singh v. Rown-
tree MacKintosh Ltd., [1979] I.C.R. 554 [E.A.T.
Scot.], at page 555; Panesar v. Nestlé Co. Ltd.,
[1980] I.C.R. 144 [Eng. C.A.], at page 146. The
distinction between "direct" and "indirect" dis
crimination is reflected in paragraphs (a) and (b)
of subsection 1(1) of the Sex Discrimination Act
1975 [1975, c. 65 (U.K.)] and the Race Relations
Act 1976 [1976, c. 74 (U.K.)]. Subsection 1(1) of
the Act of 1976 reads as follows:
1. (1) A person discriminates against another in any circum
stances relevant for the purposes of any provision of this Act
if—
(a) on racial grounds he treats that other less favourably
than he treats or would treat other persons; or
(b) he applies to that other a requirement or condition
which he applies or would apply equally to persons not
of the same racial group as that other but—
(i) which is such that the proportion of persons of the
same racial group as that other who can comply with it
is considerably smaller than the proportion of persons
not of that racial group who can comply with it; and
(ii) which he cannot show to be justifiable irrespective
of the colour, race, nationality or ethnic or national
origins of the person to whom it is applied; and
(iii) which is to the detriment of that other because he
cannot comply with it.
Professor Cumming, acting as a board of inqui
ry under the Ontario Human Rights Code, R.S.O.
1970, c. 318, as amended, applied the adverse
effect concept of discrimination in two decisions
which have been considered by the courts and are
referred to by the Tribunal in the present case: Re
Complaint of Ishar Singh (May 31, 1977) and Re
Complaint of Ann J. Colfer (January 12, 1979).
The complaints were based on paragraphs (a), (b)
and (g) of subsection 4(1) of the Code (as amend
ed by S.O. 1972, c. 119, s. 5) which read as
follows:
4.—(1) No person shall,
(a) refuse to refer or to recruit any person for employment;
(b) dismiss or refuse to employ or to continue to employ any
person;
(g) discriminate against any employee with regard to any
term or condition of employment,
because of race, creed, colour, age, sex, marital status,
nationality, ancestry or place of origin of such person or
employee.
In Singh the complaint was that a Sikh had been
denied employment because of creed, contrary to
paragraph 4(1)(a), by a security service require
ment that employees must be clean-shaven and
wear a hat. In Colfer the complaint was that a
woman had, because of her sex, been denied
employment contrary to paragraphs (a) and (b)
and discriminated against contrary to paragraph
(g) by a minimum height and weight requirement
for police officers. In holding that a discriminatory
intention was not essential to a contravention of
subsection 4(1), but that it was sufficient if a
requirement that was applied equally without dis
criminatory intention had an adverse effect by
reason of a prohibited ground of discrimination,
Professor Cumming referred, among other
authorities and considerations, to Griggs v. Duke
Power Co. and to an often cited statement in Re
Attorney-General for Alberta and Gares et al.
(1976), 67 D.L.R. (3d) 635 [Alta. S.C.T.D.],
where in dealing with the equal pay provisions of
the Alberta Individual's Rights Protection Act,
S.A. 1972, c. 2, and in rejecting a contention that
compensation should not be awarded because there
had not been an intention to discriminate, D. C.
McDonald J. said at page 695: "It is the dis
criminatory result which is prohibited and not a
discriminatory intent." That was, however, clearly
a case of unequal treatment and did not involve
the application of the concept of adverse effect or
indirect discrimination.
The same is true of Re Rocca Group Ltd. and
Muise (1979), 102 D.L.R. (3d) 529 [S.C.P.E.I.],
in which McDonald J., delivering the majority
opinion of the Prince Edward Island Court of
Appeal, said [at p. 533] that "intention plays no
part in considering whether or not there has been
discrimination". The issue in that case was wheth
er a covenant in a shopping centre lease restricting
a men's barber shop to serving men was void as
discrimination within paragraph 2(a) of the Prince
Edward Island Human Rights Act, S.P.E.I. 1975,
c. 72, which provides that "No person shall dis
criminate ... against any individual or class of
individuals with respect to the enjoyment of
accommodation, services and facilities to which
members of the public have access ...." In sup
port of his statement McDonald J. referred to
Griggs, Gares, the decisions of Professor Cumming
in Singh and Colfer, and the statement of Laskin
C.J.C. in Gay Alliance Toward Equality v. Van-
couver Sun, [1979] 2 S.C.R. 435, at page 446 that
"Intent is not, however, an issue under s. 3 of the
Human Rights Code."
In Ontario Human Rights Commission et al. v.
Simpsons-Sears Ltd. (1982), 38 O.R. (2d) 423
(C.A.); 36 O.R. (2d) 59 (Div. Ct.), the Ontario
Divisional Court and Court of Appeal declined to
apply the adverse effect concept under paragraph
4(1)(g) of the Ontario Human Rights Code,
R.S.O. 1980, c. 340, which was in the same terms
as the provision invoked in Colfer. The case
involved a complaint by a Seventh Day Adventist
that the application to her of a requirement of
work on Saturday amounted to discrimination
because of her creed or religion. The Court of
Appeal, unanimously affirming a majority judg
ment of the Divisional Court, held that a dis
criminatory intention was an essential element of a
contravention of paragraph 4(1)(g). Professor
Edward Ratushny acting as a board of inquiry,
had held that a discriminatory intention was not
essential, citing Gares and the decisions of Profes
sor Cumming in Singh and Colfer. The conclusion
of the Divisional Court and the Court of Appeal
on this issue was based on the view that the words
"because of" in subsection 4(1) referred to the
reasons or motivation for a particular act, but it
was also clearly influenced by the absence of a
"saving provision" offering the employer an excep
tion or defence based on business necessity or
reasonable accommodation. It was observed that
the defence of bona fide occupational requirement
in subsection 4(6) of the Code was confined to
cases of employment discrimination based on age,
sex or marital status. It was also noted that there
was no legislative provision comparable to subsec
tion 701(j) of the United States Civil Rights Act
of 1964 which was added in 1972 and imposes a
duty on an employer to reasonably accommodate
the religious practices of an employee if he can do
so without undue hardship to his business. Both
Southey J. in the Divisional Court and Lacourcière
J.A. in the Court of Appeal expressed the view
that the statement of D. C. McDonald J. with
respect to the equal pay provisions in Gares was
not helpful in the construction of paragraph
4(1)(g) of the Code. Southey J. also said with
reference to Griggs that he did not think it was
applicable because of the very special conditions of
racial discrimination in the United States to which
it was directed. Lacourcière J.A. found further
support for his conclusion that a discriminatory
intention was essential in the fact that the Ontario
legislature had subsequently made express provi-
sion for adverse effect or indirect discrimination in
section 10 of the Human Rights Code, 1981 (S.O.
1981, c. 53), which is as follows:
10. A right of a person under Part I is infringed where a
requirement, qualification or consideration is imposed that is
not discrimination on a prohibited ground but that would result
in the exclusion, qualification or preference of a group of
persons who are identified by a prohibited ground of discrimi
nation and of whom the person is a member, except where,
(a) the requirement, qualification or consideration is a
reasonable and bona fide one in the circumstances; or
(b) it is declared in this Act that to discriminate because of
such ground is not an infringement of a right.
On the question whether sections 7 and 10 of the
Canadian Human Rights Act afford a sufficient
statutory basis for application of the adverse effect
or indirect concept of discrimination reference was
made by counsel to the wording of section 2 of the
Act as well as that of sections 7 and 10. Section 2
defines the purpose of the Act with respect to
discrimination as follows:
2. The purpose of this Act is to extend the present laws in
Canada to give effect, within the purview of matters coming
within the legislative authority of the Parliament of Canada, to
the following principles:
(a) every individual should have an equal opportunity with
other individuals to make for himself or herself the life that
he or she is able and wishes to have, consistent with his or her
duties and obligations as a member of society, without being
hindered in or prevented from doing so by discriminatory
practices based on race, national or ethnic origin, colour,
religion, age, sex or marital status, or conviction for an
offence for which a pardon has been granted or by dis
criminatory employment practices based on physical hand
icap; ...
It was argued by counsel for CN and the Attorney
General of Canada that the words "discriminatory
practices based on" in section 2 indicated that the
Act was concerned with practices which were
adopted for discriminatory reasons. It was con
tended that the words "on a prohibited ground of
discrimination" in sections 7 and 10 of the Act
also connoted reason or motivation. Counsel for
the Commission and Bhinder submitted that the
word "indirectly" in section 7 and the words "that
deprives or tends to deprive" in section 10 showed
a concern with effects, regardless of intention or
motivation. They also argued that the wording of
subsection 41(3) of the Act, which provides that
additional compensation may be awarded by the
Tribunal, where the discriminatory practice has
been engaged in "wilfully or recklessly", indicates
that a discriminatory intention or motivation is not
necessary to constitute a discriminatory practice
for which relief may be granted under subsection
41(2).
The issue, as I see it, is not so much whether a
discriminatory intention or motivation is required
for the discriminatory practices defined by sections
7 and 10 of the Canadian Human Rights Act, as
whether they include indirect as well as direct
discrimination. Quite clearly the Act is concerned
with discriminatory effects, and in a case of differ
ential treatment, such as unequal pay, it is the
objective fact of discrimination rather than inten
tion that matters. The distinction is between dif
ferential treatment, which may or may not be
accompanied by a discriminatory motivation or
animus, but which will generally be intended, and
what is on its face equal treatment but neverthe
less has a discriminatory effect on a particular
person by reason of a prohibited ground or basis of
discrimination.
In section 7 of the Act the word "indirectly"
may well be thought to indicate that indirect as
well as direct discrimination is contemplated, but
in my opinion it refers to the manner in which the
conduct described there ("to refuse to employ or
continue to employ any individual" or "in the
course of employment, to differentiate adversely in
relation to an employee") is carried out rather
than the manner in which it produces its dis
criminatory effect. Nor do I think that the words
"wilfully or recklessly" in subsection 41(3), which
refer to a particular state of mind or degree of
intention, clearly indicate that section 7 contem
plates indirect as well as direct discrimination. In
my opinion section 7 only contemplates direct
discrimination—that is, discrimination in which
there is a discriminatory intention or motivation or
differential treatment on a prohibited ground, with
or without intention. It does not extend to dis
crimination in which there is neither a discrimina-
tory intention or motivation nor differential
treatment.
Section 10, on the other hand, would appear to
be sufficiently comprehensive to include the effect
of indirect discrimination. Such an effect is cov
ered in my opinion by the words "that deprives or
tends to deprive" and particularly by the words
"tends to deprive". Essentially the same words
were in paragraph 703(a)(2) of the United States
Civil Rights Act of 1964, which was the statutory
basis for application of the adverse effect concept
of discrimination in Griggs. It is true that the
words "or otherwise adversely affect" were also in
that provision, and commentators have attached
particular significance to them as a basis for the
decision (see Blumrosen, op. cit., page 74; Tar-
nopolsky, op. cit., page 89), but they do not in my
opinion add anything for purposes of this issue to
what is already conveyed by the words "that
deprives or tends to deprive". I note also that the
words "because of' were in paragraph 703(a)(2),
but they did not prevent the Court from conclud
ing that the section permitted the application of
the adverse effect concept. I am of the same view
concerning the words "on a prohibited ground" in
section 10 which, in relation to effect, should be
understood as meaning by reason of a prohibited
ground of discrimination.
For these reasons I am of the opinion, apart
from the question of the application and effect of
the safety provisions of the Canada Labour Code
and regulations, that section 10 of the Canadian
Human Rights Act afforded a sufficient basis for a
conclusion that CN had prima facie engaged in a
discriminatory practice.
The second issue is whether the Tribunal erred
in law in deciding that CN's safety hat require
ment, as applied to Bhinder, was not a bona fide
occupational requirement. Counsel for CN and the
Attorney General of Canada relied particularly on
the meaning that was given to this exception or
defence by the Supreme Court of Canada in
Ontario Human Rights Commission, et al. v. Bor
ough of Etobicoke [[1982] 1 S.C.R. 202]; 132
D.L.R. (3d) 15. In that case the issue was whether
a provision for the mandatory retirement of
municipal fire-fighters at the age of 60 was a bona
fide occupational qualification and requirement
for the position or employment within the meaning
of subsection 4(6) of the Ontario Human Rights
Code, R.S.O. 1970, c. 318. McIntyre J., delivering
the unanimous judgment of the Court, said at p.
208 [Supreme Court Reports]:
To be a bona fide occupational qualification and requirement a
limitation, such as a mandatory retirement at a fixed age, 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 extrane
ous 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.
Counsel for CN and the Attorney General of
Canada submitted that in the light of this defini
tion and the Tribunal's own findings as to CN's
purpose in adopting the safety hat requirement
and as to its actual effect, there was no conclusion
open in law other than to find that the requirement
was a bona fide occupational requirement within
the meaning of paragraph 14(a) of the Act. The
Tribunal found that CN had not adopted its safety
hat requirement, or applied it to Bhinder, with a
discriminatory intention or motivation, but had
imposed it on all employees in the Toronto Coach
Yard in the honest belief that it would provide
greater safety for its employees. That, it was sub
mitted, satisfied the subjective test. The Tribunal
also found that the safety hat requirement was a
sound policy that would better ensure employees'
safety and reduce CN's compensation liability, and
that Bhinder would be exposed to a greater risk of
injury, albeit not relatively significant, if he wore a
turban instead of a hard hat. That, it was submit
ted, satisfied the objective test.
The approach which the Tribunal adopted to the
question of bona fide occupational requirement
was first to take the position that it must be given
a restricted application since it represented an
exception to what would otherwise be a dis
criminatory practice, and then to weigh the risks
and additional cost of permitting Bhinder to wear
a turban instead of a hard hat against the effect on
him of making him choose between his religion
and his employment. In doing so the Tribunal
applied the principle that an employer has a duty
to accommodate the religious practices of an
employee by an exemption from or substitution for
a requirement if he can do so without undue
hardship to his business. Counsel for CN and the
Attorney General of Canada contended that the
Tribunal erred in introducing this qualification
into the exception or defence of bona fide occupa
tional requirement. They submitted that there was
no basis for it in the Act and that it was excluded
by the definition of "bona fide occupational
requirement" laid down by the Supreme Court of
Canada in the Etobicoke case.
The duty to accommodate, like the adverse
effect concept of discrimination, has been bor
rowed by Canadian Human Rights Tribunals from
American law. It was expressly provided for in the
United States in 1972 by an amendment to Title
VII of the Civil Rights Act of 1964 which pro
vided in subsection 701(j) as follows: "The term
`religion' includes all aspects of religious observ
ance and practice, as well as belief, unless an
employer demonstrates that he is unable to reason
ably accommodate to an employee's or prospective
employee's religious observance or practice with
out undue hardship on the conduct of the employ
er's business." This amendment was adopted after
the opinion had been expressed on the petition for
rehearing in Dewey v. Reynolds Metal Company,
429 F.2d 324 [6th Cir. 1970] (affirmed on an
equal division by the Supreme Court, 402 U.S. 689
(1971)) that there was no such duty under the
legislation as it then existed.
The duty to accommodate was applied by
Professor Cumming in Singh and Colfer. In Simp-
sons-Sears, Professor Ratushny expressed some
reservations about its proper scope, and both the
Divisional Court and the Court of Appeal
expressed the view that there was no basis for it in
the Ontario Human Rights Code as it then stood.
Referring to the decision in Dewey and the amend
ment to the Civil Rights Act of 1964 in 1972,
Lacourcière J.A. said at page 426: "It seems clear
to me that the post-1972 jurisprudence in the
United States, which appears to have been fol
lowed by various chairmen of boards of inquiry
under the Ontario Human Rights Code, is of no
assistance in the interpretation of the Ontario
Human Rights Code prior to the 1981 amendment
which was proclaimed June 15, 1982 and now
contains the following section (s. 10) ...".
Although Lacourcière J.A. was concerned with the
question whether a discriminatory intention was
essential to a contravention of paragraph 4(1)(g)
of the Code, I infer from his statement that he was
of the view that the duty to accommodate would
be applicable under the new section 10, which was
quoted earlier in these reasons.
In the present case the Tribunal adopted the
position, and this was the contention of counsel for
the Commission and Bhinder, that the duty to
accommodate is a necessary aspect of the applica
tion of the exception of bona fide occupational
requirement in a particular case. It is a corollary
of the concept of adverse effect or indirect dis
crimination that the exception must be considered
in relation to the employee affected; otherwise the
exception could render the concept of indirect
discrimination illusory. It is thus necessary in
weighing the various factors, including the dis
criminatory effect, in order to determine whether
the requirement is reasonably necessary in relation
to the employee affected, that consideration be
given to whether an exemption from or substitu
tion for the requirement could be allowed by the
employer in the particular case without undue
hardship to his business. A similar approach has
been adopted by industrial tribunals in Great Brit-
ain in determining, in a case of indirect discrimi
nation under the Sex Discrimination Act 1975 and
the Race Relations Act 1976, whether a require
ment or condition is "justified": see Singh v.
Rowntree MacKintosh Ltd., [1979] I.C.R. 554
[E.A.T. Scot.]. In my opinion this is a sound
approach that is open as a matter of law to a
Human Rights Tribunal under paragraph 14(a) of
the Canadian Human Rights Act, and it is not
excluded by the definition given to "bona fide
occupational requirement" by the Supreme Court
of Canada in the Etobicoke case.
The application and balancing of the various
factors to be considered in deciding whether a
particular employment requirement or condition
is, as regards the employee affected, reasonably
necessary, or whether in the circumstances there is
a duty to accommodate the religious practices of
the employee, involves what are essentially ques
tions of fact, and to some extent, questions of
human rights policy. See the opinion of Ritchie J.
(for himself and Laskin C.J.C. and Dickson J.) in
Insurance Corporation of British Columbia v.
Heerspink et al., [[1982] 2 S.C.R. 145]; 137
D.L.R. (3d) 219, at pages 153 and 154 [Supreme
Court Reports] as to the nature of the question of
"reasonable cause" under section 3 of the Human
Rights Code of British Columbia [R.S.B.C. 1979,
c. 186], and that of Lord Denning M.R. in Pane-
sar v. Nestlé Co. Ltd., [1980] I.C.R. 144 [Eng.
C.A.], at page 147 as to the nature of the question
whether a requirement or condition is "justifiable"
under subsection 1(1) of the Race Relations Act
1976. The powers of review of this Court on a
section 28 application are not as extensive as those
of a court on an appeal under the Ontario Human
Rights Code, 1981, which expressly provides that
the Court has power to review questions of fact, as
well as law, and to substitute its opinion for that of
a board of inquiry. Nor are they as extensive as
those which have been assumed by American
courts in reviewing whether an employer can rea
sonably accommodate the religious practices of an
employee without undue hardship to his business.
See Trans World Airlines, Inc. v. Hardison et al.,
432 U.S. 63 (1977) [S.C.]. Where the question is
essentially one of fact this court is confined by
paragraph 28(1)(c) of the Federal Court Act
[R.S.C. 1970 (2nd Supp.), c. 10] to determining
whether the Tribunal has based its decision on an
erroneous finding of fact "made in a perverse or
capricious manner or without regard for the ma
terial before it". There is also in my opinion the
consideration that the Court should not lightly
interfere with what is essentially a question of
human rights policy in the application of the prin
ciples or criteria which Human Rights Tribunals
have developed as a distinct body of jurisprudence
in what is a relatively new field.
In the present case the Tribunal based its con
clusion on the question of bona fide occupational
requirement on several findings of fact and on
policy choices as to the weight to be given to the
various factors. There was evidence before the
Tribunal as to the relative risk of head injury and
electrocution in Bhinder's work and as to the
respective safety properties of the hard hat and the
turban. It would not serve a useful purpose to
attempt to review that evidence in detail here. The
Tribunal concluded from it that the risk of head
injury to Bhinder if he wore a turban instead of a
hard hat was insignificant or slight and that the
risk of electrocution was not of sufficient serious
ness that it required to be taken into consideration.
The Tribunal also concluded that there would be
no risk of injury to other employees or members of
the public. I am unable to conclude that any of
these findings of fact fall within the description in
paragraph 28(1)(c) of the Federal Court Act. The
most controversial in my opinion is the finding that
the evidence did not establish a danger of the kind
that would bring Bhinder's work within the scope
of the electrical safety regulations, which define an
"electrical facility" as including equipment having
"an ampacity and voltage that is dangerous to
employees". Thomas Beaton, the Regional Direc
tor of Labour Canada for Ontario, assumed that
the electrical safety regulations applied to Bhin-
der's work, and this was one of the reasons he gave
for refusing an exemption from CN's safety hat
requirement. He referred in his testimony to two
cases involving the electrocution of maintenance
electricians, but he did not specify the circum
stances. I think it is clear that they were not
working on the Turbo Train. There was some
evidence that there was a danger of electrocution
in Bhinder's work, but there was also evidence that
a maintenance electrician would have to be very
careless to expose himself to electrocution in that
particular work. There was evidence that the
turban lacked the insulation requirement for elec
trical safety, and indeed that there would be a
particular danger of electrocution when wearing a
wet turban. In weighing the probability of an
appreciable risk of electrocution in Bhinder's work
and the relation of the safety hat to it, the Tri
bunal appears to have attached particular impor
tance to the fact that the maintenance electricians
working on the Turbo Train were not required to,
or in any event did not, wear protective gloves. The
Tribunal appears to have been referring to what it
considered to be the weight of the evidence on the
danger of electrocution when it said, "Although it
was an implicit suggestion in some of the Respond
ent's evidence that there was a danger of electro
cution to maintenance electricians on the turbo
train, there was no concrete evidence presented in
this regard." I have reservations about the Tribu
nal's finding on this question but I am unable to
conclude that it was an error of the kind described
in paragraph 28(1)(c) of the Federal Court Act.
I turn now to the question whether the Tribunal
erred in law in holding that the potential increase
in cost of workmen's compensation to CN, as a
Schedule 2 employer under the Ontario Work-
men's Compensation Act, if Bhinder and other
Sikhs were permitted to wear turbans instead of
hard hats, was not undue hardship, and that even
if it was, there was still a duty to accommodate in
view of the relative importance of Bhinder's reli
gious freedom. The Tribunal's reasoning on this
point may be summarized as follows. The
increased cost to Schedule 1 employers of an
exemption from the hard hat requirement would
be de minimis because of the extent to which the
risk is spread. The increased cost to Schedule 2
employers, who pay compensation directly, would
be quantitatively greater but would still be de
minimis because of the size of such employers.
Even if not de minimis, it should not be regarded
as undue hardship because it is a risk inherent in
the employment of persons in compliance with the
Canadian Human Rights Act and one which an
employer, whether Schedule 1 or Schedule 2, is
obliged to accept because of the comprehensive
nature of workmen's compensation. In effect, the
Tribunal held, as I read its reasons, that an
increased cost of workmen's compensation arising
from an accommodation of the religious practices
of an employee cannot in principle be undue hard
ship or a reason for denying such accommodation.
I find that this determination of the issue of undue
hardship falls within the broad area of human
rights policy that must as a matter of law be left to
a Human Rights Tribunal in determining whether
there is a duty to accommodate in a particular
case. It was not, in my opinion, an unreasonable
view, having regard to the nature of workmen's
compensation and the risk inherent in accommoda
tion of this kind. Certainly, it was open to the
Tribunal, given its finding as to the relative risk of
injury to Bhinder if he wore a turban instead of a
hard hat, to find, as a question of fact, that the
potential increase in workmen's compensation cost
to CN would be for an employer of CN's size de
minimis and, therefore, not undue hardship. But
even if it be regarded as a question of law, because
of the manner in which the Tribunal further dealt
with it, I am not prepared to hold, because of the
essentially policy nature of the judgment, that that
particular view of an increased cost of workmen's
compensation should be regarded as clearly
erroneous in law.
There remains what may be referred to as the
jurisdictional issue. This is the contention that the
Tribunal did not have jurisdiction to determine the
application of the safety provisions of the Canada
Labour Code and the protective clothing and elec
trical safety regulations and to find, notwithstand
ing these provisions and the refusal of an exemp
tion by Labour Canada, that CN's safety hat
requirement, as applied to Bhinder, was prima
facie a discriminatory practice and was not a bona
fide occupational requirement. The Tribunal took
the position that federal legislation and regulations
must be construed and applied as subject to the
provisions of the Canadian Human Rights Act. I
agree with that position. It is in conformity with
the intention expressed in section 2 of the Act that
the purpose of the Act is "to extend the present
laws in Canada to give effect, within the purview
of matters coming within the legislative authority
of the Parliament of Canada, to the following
principles ...", and it is in conformity with the
primacy accorded to human rights legislation by
the opinion of Lamer J., with whom Estey and
McIntyre JJ. concurred in Insurance Corporation
of British Columbia v. Heerspink et al., [[1982] 2
S.C.R. 145]; 137 D.L.R. (3d) 219, and that of the
Manitoba Court of Appeal in Re Newport and
Government of Manitoba (1982), 131 D.L.R. (3d)
564. An employment requirement or condition,
even if imposed by or in compliance with valid
federal legislation or regulations, must not in its
application have a discriminatory effect contrary
to the Canadian Human Rights Act. It follows
that the Tribunal necessarily had jurisdiction to
consider the application of the Code and the regu
lations in this case, as well as the various issues of
safety and risk, in determining whether there was
in all the circumstances a duty to accommodate
the religious practices of Bhinder. Assuming that
CN's safety hat policy was one required by the
Code and by the protective clothing regulations, if
not the electrical safety regulations, I agree with
the Tribunal that that did not make it, as applied
to Bhinder, ipso facto a bona fide occupational
requirement. I have already indicated why I think
that the duty to accommodate is a necessary
aspect of the application of the exception of bona
fide occupational requirement in a case of indirect
discrimination. That is not altered in, my opinion
by the fact that the requirement has been imposed
pursuant to statute or regulation. For these reasons
I am of the opinion that whether or not the
Tribunal was correct in concluding that the electri
cal safety regulations did not apply and that the
turban met the requirements of the protective
clothing regulations for alternative head protection
cannot affect the validity of its decision, so long as
there was some evidence to support the essential
findings reflected by these conclusions as to the
relative risk of electrocution and the comparative
safety properties of the turban. I am of the opinion
that there was some evidence to support them and
that they could therefore be properly taken into
account in considering whether in all the circum
stances there was a duty to accommodate.
For these reasons I would dismiss the section 28
application.
* * *
The following are the reasons for judgment
rendered in English by
KELLY D.J.: I have had the advantage of read
ing the reasons for judgment of both my brother
Heald and my brother Le Dain. I am in agreement
with the result at which the former has arrived,
but there are some matters not dealt with in his
reasons which I consider worthy to be noted.
Despite the fact that the decision of the Human
Rights Tribunal does not precisely state so, it is
inherent in the formation of the text that the
Tribunal has directed its attention to the develop
ment of policy and in the course of so doing, has
drawn heavily upon jurisprudence and practice in
jurisdictions other than that of Canada (federally)
and in at least some cases without regard to the
lack of identity between the legislation prevailing
in Canada and that of other jurisdictions.
The Canadian Human Rights Act defines dis
criminatory practice and by subsection 22(2) [rep.
and sub. S.C. 1977-78, c. 22, s. 5] empowers the
Commission to issue guidelines. 8 Such guidelines
when properly enacted are binding upon the Com
mission and upon any Tribunal. In the light of the
provisions of subsection 22(2) such guidelines have
legislative effect.
Where a complaint has been filed, the Commis
sion may appoint a Tribunal to investigate the
complaint; at the conclusion of the inquiry the
Tribunal is empowered to (a) dismiss the com
plaint; (b) find the complaint is substantiated; but
its consequent power to make any punitive order
arises on the finding that the complaint has been
substantiated.
In this delineation of powers, I would consider
that the policy of the Act is to be found by
interpreting the words used by Parliament in the
Act, as supplemented by the exercise of the dele
gated legislative authority to issue guidelines con
ferred on the Commission.
The Tribunal, in performing a judicial or quasi-
judicial function, no doubt is called upon to con
strue the legislation by which it is governed, but in
so doing, in conformity with the adopted canons
for the construction of statutes, it must confine
itself to the words used by Parliament and the
Commission to express their respective intentions.
In framing its decision, the Tribunal herein
appears to have enlarged its commitment to
encompass areas not specifically committed to it.
I do not propose to catalogue the instances
which appear in the Tribunal's decision; but as an
8 Subsection 22(2) reads as follows:
22. ...
(2) The Commission may, at any time on application or on
its own initiative, by order, issue a guideline setting forth the
extent to which and the manner in which, in the opinion of
the Commission, any provision of this Act applies in a
particular case or in a class of cases described in the guide
line and any such guideline is, until it is subsequently revoked
or modified, binding on the Commission, any Human Rights
Tribunal appointed pursuant to subsection 39(1) and any
Review Tribunal constituted pursuant to subsection 42.1(2)
with respect to the resolution of any complaint under Part III
regarding a case falling within the description contained in
the guideline.
example, I would refer to the "duty to accommo
date" for which concept I fail to find any reference
in the relevant legislation.
My second observation is with respect to
another principle which, perhaps unexpressed, is
nonetheless inherent in the decision, i.e. that where
any possible conflict arises between Human Rights
and any other statutory or regulatory provision,
the precedence of Human Rights must prevail. I
cannot conceive that Parliament would have failed
so to express its intention if it had intended that
Human Rights should be universally accorded
supremacy.
Here again, I do not seek to enumerate all
possible references but suggest but one area in
which that principle is insupportable. Despite the
admittedly high importance of protecting Human
Rights as defined in the Act, in our society an even
higher right exists—the sanctity of human life and
the preservation of the individual's physical integ
rity. Killing or maiming, otherwise unjustified,
cannot be tolerated because the perpetrator has
claimed that his action is an expression of his
religious belief. As I read the judgment of McIn-
tyre J. in Ontario Human Rights Commission, et
al. v. Borough of Etobicoke, [1982] 1 S.C.R. 202,
at page 208, 9 the possible endangering of the
employee, his fellow employees and the general
public is to be taken into consideration when con
sidering what is a bona fide occupational qualifica
tion or requirement.
9 To be a bona fide occupational qualification and require
ment a limitation, such as a mandatory retirement at a fixed
age, 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 ulteri
or 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 con
cerned, 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.
It would appear that if safety of the employee,
fellow employees and the public is a consideration
which must be taken into account with regard to
determination of Human Rights or the infringe
ment of Human Rights, there can be no para-
mountcy with respect to Human Rights.
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.