A-1596-83
Air Canada (Applicant)
v.
Paul S. Carson, Ramon San; William Nash,
Barry James, Arie Tall and The Canadian Human
Rights Commission (Respondents)
Court of Appeal, Mahoney, Stone and MacGuigan
JJ.—Toronto, January 28, 29, 30 and 31; Ottawa,
February 15, 1985.
Human rights — Age discrimination — Maximum hiring
age policy — Application to set aside Review Tribunal's
decision that Air Canada's maximum age 27 hiring policy for
pilots not based on bona fide operational requirement (eFOR)
— Review Tribunal finding two-pronged test, to justify refus
al to hire under BFOR exception, in American case Smallwood
v. United Air Lines, Inc., 661 F.2d 303 (4th Cir. 1981) "sub-
stantively similar" to test set out by S.C.C. in Ontario Human
Rights Commission et al. v. Borough of Etobicoke, [19821 1
S.C.R. 202; 132 D.L.R. (3d) 14 — Air Canada submitting test
in Hodgson v. Greyhound Lines, Inc., 499 F.2d 859 (7th Cir.
1974) standard of Etobicoke — S.C.C. not disapproving of nor
endorsing Greyhound test — Smallwood test more proximate
stage in determination of BFOR - Although evidence disclos
ing Air Canada may have failed both prongs of American test,
Review Tribunal reaching same result entirely on basis of
general language of Etobicoke test — Review Tribunal not
erring in application of test — Review Tribunal erred in
concluding policy of Act precluding BFOR based on prohibited
ground of discrimination — Error not affecting decision to
reject "age reversal" problem as BFOR and not forming basis to
set aside decision — Review Tribunal also erred in rejecting
expert medical and statistical evidence and allegedly erred in
burden of proof imposed on Air Canada — Errors not forming
basis to set aside decision as not relating to real issue of
justification for policy — Canadian Human Rights Act, S.C.
1976-77, c. 33, ss. 2(a), 3, 7, 10(a), 14(a), 42.1 — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
This is the first case of age discrimination relating to the age
of entry into employment to reach the Canadian courts. It is an
application to set aside a decision of the Review Tribunal that
Air Canada's policy not to hire new pilots over the age of 27
was not based on a bona fide occupational requirement (BFOR).
Paragraph 14(a) of the Canadian Human Rights Act provides
that it is not a discriminatory practice if any limitation in
relation to employment is established by an employer to be
based on a bona fide occupational requirement. The Review
Tribunal found that the two-pronged test to justify a refusal to
hire under the BFOR set out in the American case, Smallwood
v. United Air Lines, Inc., 661 F.2d 303 (4th Cir. 1981), was
"substantively similar" to the test set out by the Supreme
Court of Canada in Ontario Human Rights Commission et al.
v. Borough of Etobicoke, [1982] 1 S.C.R. 202; 132 D.L.R.
(3d) 14. Air Canada argues that the test in Hodgson v.
Greyhound Lines, Inc., 499 F.2d 859 (7th Cir. 1974) is the
standard of Etobicoke. What Air Canada had to establish was
that the maximum hiring age actually adopted, 27, was a bona
fide occupational requirement, not merely that some maximum
hiring age would have been. Air Canada alleges that the
Review Tribunal erred (1) in equating the Etobicoke decision
with the American case Arritt v. Grisell, which was followed by
Smallwood (2) in applying its perception of the policy of the
Canadian Human Rights Act in considering certain evidence
and (3) in requiring Air Canada to prove that the safety
concerns underlying the policy were well founded in fact, rather
than that they were founded on an unresolved medical debate.
Held, the application is dismissed.
Per Mahoney J. (Stone J. concurring): The Etobicoke case
requires that a limitation be imposed in good faith and in the
belief that the limitation is imposed in the interests of the
adequate performance of the work, and that it be related in an
objective sense to the employment concerned, in that it is
reasonably necessary to assure the safe performance of the job,
to be a BFOR. The Arritt case adopts a two-pronged test: that
the burden is on the employer to show (1) that the BFOR
imposed is reasonably necessary to the essence of its business
and (2) that the employer has reasonable cause, i.e., a factual
basis for believing that all persons within the class would be
unable to perform the job safely, or that it would be impractical
to deal with persons over the age limit on an individualized
basis. The first branch of the Arritt test is similar in substance
to the subjective element of the Etobicoke test, and the second
branch of the Arritt test is apt here. In asking what is reason
ably necessary to assure the safe performance by pilots of their
duties as they age, it seems reasonable, and consistent with
Etobicoke, to enquire if it is not possible or practical to deal
with those pilots on an individual basis rather than preventing
their initial appointment by a blanket refusal to hire. While the
Supreme Court has not disapproved of the American Grey
hound test (that the employer need only demonstrate a minimal
increase in risk of harm), it has not endorsed it. Air Canada is
obliged to prove, on a balance of probabilities, its practice to be
a BFOR. Etobicoke states the test in general terms. How that
test may be appropriately applied in concrete terms will depend
on the particular circumstances in each case.
Air Canada had advanced "the age reversal problem" as a
justification for the hiring age limit. That concerned the poten
tial for conflict in the cockpit if a young pilot having seniority
was in command over a recently-hired but older pilot. The
Review Tribunal rejected the "age reversal" problem as sup
porting a bona fide occupational requirement on the grounds
that there was not sufficient evidence that age reversal is a
significant problem, and because problems arising from atti
tudes which reflect bias on a ground of discrimination prohib
ited under the Act cannot justify a bona fide occupational
requirement. It was an error of law to conclude that the policy
of the Act precluded a conclusion that the age reversal problem
could be the basis for a BFOR. The policy of the Act is not only
to prohibit discrimination on the prescribed grounds but to
permit that discrimination where it is a BFOR. As this error in
law did not affect the Review Tribunal's decision in that it had
already reached its conclusion as to the age reversal problem on
a proper basis, it is not a basis for setting aside the decision.
The Review Tribunal erred in law when it stated that the
fallacy in the approach of the medical experts was that it tends
to assume that a correlation between age and impairment is not
only a necessary, but also a sufficient basis to support age as a
bona fide occupational requirement. The Review Tribunal also
erred in rejecting statistical evidence, and allegedly erred in the
burden imposed on Air Canada. None of these errors related to
the real issue: the justification for the maximum hiring age
policy. All were made in the Review Tribunal's consideration of
the effects of aging on pilots and the resulting safety concerns;
none was made in its consideration of the connection between
the policy in issue and those concerns and risks. Air Canada
failed to establish a credible link between the effects of pilot
aging on safety and its maximum hiring age of 27 policy so as
to prove that policy to be a bona fide occupational requirement.
The Review Tribunal did not err in that conclusion.
Per McGuigan J.: The applicant argues that the citation of
the American Greyhound case by the Supreme Court in Etobi-
coke indicates approval of its reasoning, so that it is the best
interpretation of the Etobicoke case. McIntyre J. cited the
Greyhound case together with the New Brunswick Board of
Inquiry decision in Little v. Saint John Shipbuilding and
Drydock Co. Ltd., which reached a different conclusion and
contained dicta contrary to those in the American case. The
Greyhound case spoke of "a minimal increase in risk of harm"
while the Little case spoke of a "minimum acceptable risk
factor". The latter implies a measure of acceptability of risk
that the former does not. Matheson J. in Moose Jaw v. Sask.
Human Rights Comm. correctly insisted that the "sufficient
risk" test of Etobicoke cannot be equated with an "intolerable
risk", but the notion that the American courts endorse an
"intolerable risk" approach is erroneous. An examination of the
cases cited by McIntyre J. makes it clear that he did not intend
by his reference to give approval to a particular measure of
risk. Nevertheless his own posing of the issue in terms of
whether there is "sufficient risk of employee failure" indicates
a recognition of a certain degree of risk that sits better with the
notion of "acceptable" than with that of "minimal".
The Greyhound approach has not had unanimous support in
American courts. The same approach was taken in Murnane v.
American Airlines, Inc., but shortly after in Smallwood v.
United Air Lines, Inc., the U.S. Court of Appeals rejected
another airline's rule denying employment to pilot applicants
over 35 as a bona fide occupational qualification (BFoQ). The
Court proposed a two-pronged test. The applicant alleges that
the Review Tribunal erred in stating that this test was "sub-
stantively similar" to the one set forth in Etobicoke. The same
Court that decided Greyhound "refused to give it full faith and
credit" in Orzel v. City of Wauwatosa Fire Dept., when it
rejected the City's position that a BFOR is established by the
employer's showing a rational basis in fact for a belief that it
diminishes the risk of harm. Air Canada submits that where
there are two or three rational factual positions based on expert
evidence, a tribunal has no option but to accept an employer's
choice. This is not proof on a balance of probabilities required
by Etobicoke. The applicant argued that the standard of proof
applied only to showing that there was a rational basis in fact,
not to proving that it was more probable than other hypotheses.
This goes along with the notion that a minimal risk to public
safety justifies a BFOR. Analysis of Etobicoke demonstrates
that this is not its meaning because it does not square either
with the standard of proof it requires or with the necessity of a
sufficiency of risk for justification.
The Smallwood test is an extension of the Etobicoke ratio,
but in continuity with it. Etobicoke identified the two inversely
proportional factors of the degree of risk and the availability of
alternative as determinative of a BFOR, objectively considered,
leaving the balancing to be arrived at in relation to all the
circumstances. The two-pronged American test is a more proxi-
mate stage in the determination of a BFOR. On the evidence,
Air Canada might have failed both prongs of this proximate
test, but the Review Tribunal, after endorsing the American
test, reached the same result entirely on the basis of the more
general language of the Etobicoke test. The Tribunal did not
err in stating that the legal test of a BFOR, as stated in
Etobicoke, is "whether the requirement is reasonably necessary
to the performance of the job ... the Tribunal must examine
both the necessity of the rule and the reasonableness of the rule
in the light of that necessity."
The Tribunal did not err in law. Any mistakes it may have
made were isolated or trivial or the result of infelicitous expres
sion. What the Tribunal intended was not to read the evidence
in the light of its policy preferences but to insist on a narrow
interpretation of the bona fide occupational requirement excep
tion as recommended by Smallwood v. United Air Lines, Inc.
The Courts must ensure that Parliament's primary intention
that people should be judged on their merits is not eroded by
overly generous exceptions. The exceptions should be narrowly
interpreted.
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) 14;
Moose Jaw v. Sask. Human Rights Comm., [1984] 4
W.W.R. 468 (Sask. Q.B.).
CONSIDERED:
Arritt v. Grisell, 567 F.2d 1267 (4th Cir. 1977); Small-
wood v. United Air Lines, Inc., 661 F.2d 303 (4th Cir.
1981); certiorari denied 102 S. Ct. 2299 (1982); Hodgson
v. Greyhound Lines, Inc., 499 F.2d 859 (7th Cir. 1974);
certiorari denied 95 S. Ct. 805 (1975); Usery v. Tamiami
Trail Tours, 531 F.2d 224 (5th Cir. 1976); Little v. Saint
John Shipbuilding and Drydock Co. Ltd. (1980), 1
C.H.R.R. D/1 (N.B. Bd. of Inq.); Murnane v. American
Airlines, Inc., 667 F.2d 98 (D.C. Cir. 1981); certiorari
denied 102 S. Ct. 1770 (1982); Orzel v. City of
Wauwatosa Fire Dept., 697 F.2d 743 (7th Cir. 1983).
COUNSEL:
J. Murray and G. Delisle for applicant.
G. D. Hunter and D. A. Aylen for
respondents.
SOLICITORS:
Cassels, Brock & Blackwell, Toronto, for
applicant.
Scott & Aylen, Ottawa, for respondents.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: The applicant, Air Canada,
applies, under section 28 of the Federal Court Act
[R.S.C. 1970 (2nd Supp.), c. 10], to set aside the
decision of a Review Tribunal [Paul S. Carson et
al. v. Air Canada (1983), 4 C.H.R.R. D/1857],
constituted under section 42.1 of the Canadian
Human Rights Act, S.C. 1976-77, c. 33, as
amended. The Review Tribunal reached the same
result as had a Tribunal, holding that Air Cana-
da's policy not to hire new pilots over the age of 27
years was not based on a bona fide occupational
requirement. No issues of natural justice or juris
diction arise. Air Canada alleges that the Review
Tribunal erred in law in making its decision and
that it based its decision on erroneous findings of
fact made in a perverse or capricious manner or
without regard for the material before it.
The pertinent statutory provision is paragraph
14(a) of the Canadian Human Rights Act:
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;
There is no issue that the policy is a discrimina
tory practice and that Air Canada had the burden
of establishing, on a balance of probabilities, that
it is based on a bona fide occupational require
ment. Neither is there any issue as to Air Canada's
bona fides in adopting the policy. It is largely
based on Air Canada's perception that, by reason
of safety concerns arising as a natural consequence
of aging, its pilots must be retired from flying at
age 60. It is applied in the context of a seniority
system, mandated by collective agreement, which
gives preference in all aspects of employment to
the pilot with the longest service with Air Canada.
It remains that the policy in issue is not mandatory
retirement at age 60, but the maximum hiring age
of 27. What Air Canada had to establish was that
the maximum hiring age actually adopted, 27, was
a bona fide occupational requirement, not merely
that some maximum hiring age would have been.
I use the term "maximum hiring age of 27" for
convenience. In fact, the policy is somewhat flex
ible. It permits hiring up to age 31 in specified
circumstances.
The Tribunal sat 19 days between February 18,
1980, and October 5, 1981. Its decision, rendered
March 18, 1982, runs to 125 pages. The Review
Tribunal dealt with the appeal on that record: 35
volumes, 4,864 pages. The Review Tribunal heard
five days of argument between December 8, 1982,
and February 17, 1983. It rendered its 100-page
decision October 26, 1983.
I find no merit whatever in the submission that
the Review Tribunal based its decision on errone
ous findings of fact made in a perverse or capri
cious manner or without regard to the material
before it. In my view only three of the errors in law
alleged require to be dealt with: firstly, the Review
Tribunal's equating of the decision of the Supreme
Court of Canada in Ontario Human Rights Com
mission et al. v. Borough of Etobicoke, [ 1982] 1
S.C.R. 202; 132 D.L.R. (3d) 14, with that of the
United States Court of Appeals, Fourth Circuit, in
Arritt v. Grisell, 567 F.2d 1267 (1977), and fol
lowed by the same Court in Smallwood v. United
Air Lines, Inc., 661 F.2d 303 (1981), a case that
also involved a maximum hiring age for pilots;
secondly, the Review Tribunal's application of its
perception of the policy of the Canadian Human
Rights Act in considering certain evidence and,
thirdly, whether Air Canada was wrongly required
to prove that the safety concerns underlying the
policy were well founded in fact, rather than only
that they were founded on an unresolved medical
debate, the ultimate resolution of which must,
prudence dictates, be viewed with pessimism by
Air Canada.
As to equating Arritt with Etobicoke, the latter
case, which dealt with the mandatory retirement
of firemen at age 60, is the leading Canadian
authority on age discrimination as a bona fide
occupational requirement. There, at page 208
S.C.R.; pages 19 ff. D.L.R., the test was stated:
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.
After considering the evidence in the case at bar,
the approaches of the Tribunal and the courts
below, to it, and the sort of evidence necessary to
establish an age discrimination as a bona fide
occupational qualification, the Supreme Court, at
pages 209-210 S.C.R.; pages 20 and 21 D.L.R.,
went on:
In an occupation where, as in the case at bar, the employer
seeks to justify the retirement in the interests of public safety,
to decide whether a bona fide occupational qualification and
requirement has been shown the board of inquiry and the court
must consider whether the evidence adduced justifies the con
clusion that there is sufficient risk of employee failure in those
over the mandatory retirement age to warrant the early retire
ment in the interests of safety of the employee, his fellow
employees and the public at large.
In Arritt, the Court had before it a state law
prescribing a hiring range of ages 18 to 35 for
police recruits. The Review Tribunal quoted only
the portion of the relevant passage which was
quoted in another case cited to it. It is, I think,
useful to quote it somewhat more fully, because
Air Canada argues that the test in Hodgson v.
Greyhound Lines, Inc., 499 F.2d 859 (7th Cir.
1974) which is referred to, is the standard of
Etobicoke. The Court, at page 1271, said:
The district court adopted the standard applied in Hodgson y
Greyhound Lines, 499 F.2d 859 (7 Cir. 1974): that the employ
er need only demonstrate "a minimal increase in risk of harm
for it is enough to show that elimination of the hiring policy
might jeopardize the life of one more person than might
otherwise occur under the present hiring practice". Id. at 863.
We believe, however, that the proper standard is the two-
pronged test formulated in Usery v. Tamiami Trail Tours, 531
F.2d 224 (5 Cir. 1976): that the burden is on the employer to
show (1) that the bfoq which it invokes is reasonably necessary
to the essence of its business (here the operation of an efficient
police department for the protection of the public), and (2) that
the employer has reasonable cause, i.e., a factual basis for
believing that all or substantially all persons within the class (in
our case, persons over 35 years of age) would be unable to
perform safely and efficiently the duties of the job involved, or
that it is impossible or impractical to deal with persons over the
age limit on an individualized basis.
That the "bfoq" was adopted in good faith is
doubtless implicit in the first branch of the Arritt
test, which is not in issue here anyway, and with
that qualification, I have no difficulty agreeing
that it is similar in substance to the subjective
element of the Etobicoke test. Without deciding
what factors might be required to be proved in
meeting the objective branch of the Etobicoke test
in another case, it seems to me that the second
branch of the Arritt test is quite apt here.
The question is not, of course, whether all or
substantially all pilots over 27 cannot perform. Air
Canada's case is not that undue risk arises
immediately upon hiring new pilots over 27. It is
rather that the risk which, it perceives, will inevita
bly arise as pilots age can be better avoided if none
over 27 are hired. Thus, in asking what is reason
ably necessary to assure the safe performance by
pilots of their duties as they age, it seems entirely
reasonable to enquire if it is not possible or practi
cal to deal with those pilots on an individual basis
rather than preventing their initial employment by
a blanket refusal to hire.
The Tamiami [Usery v. Tamiami Trail Tours,
531 F.2d 224 (5th Cir. 1976)] case is referred to in
the quotation from Arritt above. I mention it only
because it was dealt with in a recent decision of
the Saskatchewan Court of Queen's Bench in
Moose Jaw v. Sask. Human Rights Comm.,
[1984] 4 W.W.R. 468 [at page 474], where the
board of inquiry had cited Tamiami for the follow
ing proposition:
"It is the Board's view that the case law establishes that it is
still necessary for the employer to show that all members of the
restricted class (in this case, those over 62 and eventually over
60) had the intolerable characteristic or that the incidence in
that group was so great and not sufficiently identifiable as to
make the risks from continuing to employ members of the
group intolerable in the circumstances."
I have read and reread Tamiami with care.
Nowhere in it does that language or anything near
so strong appear. In particular, the word "intoler-
able" is not used. Its test is that of Arritt. Accord
ingly, I do not wish to be taken as disagreeing with
the Saskatchewan decision which did reject, quite
rightly in my view, the above statement as being
outside the scope of the Etobicoke test.
On the other hand, Air Canada argues that the
test of the Greyhound case is equivalent to that of
Etobicoke. Both Tamiami and Greyhound dealt
with maximum hiring ages for bus drivers. The
Court in Greyhound said [at page 863]:
Due to such compelling concerns for safety, it is not necessary
that Greyhound show that all or substantially all bus driver
applicants over forty could not perform safely. Rather, to the
extent that the elimination of Greyhound's hiring policy may
impede the attainment of its goal of safety, it must be said that
such action undermines the essence of Greyhound's operations.
Stated differently, Greyhound must demonstrate that it has a
rational basis in fact to believe that elimination of its maximum
hiring age will increase the likelihood of risk of harm to its
passengers. Greyhound need only demonstrate however a mini
mal increase in risk of harm for it is enough to show that
elimination of the hiring policy might jeopardize the life of one
more person than might otherwise occur under the present
hiring practice.
In its discussion of the sort of evidence required in
cases such as this, the Supreme Court of Canada,
in Etobicoke at page 213 S.C.R.; page 23 D.L.R.,
said:
The question of sufficiency and the nature of evidence in such
matters has been discussed in various cases, and of particular
interest are: Hodgson v. Greyhound Lines, Inc., 499 F.2d 859
(1974); Little v. Saint John Shipbuilding and Drydock Co.
Ltd. (1980), 1 C.H.R.R. 1.
While the Supreme Court has certainly not disap
proved of the Greyhound test, it has not, as Air
Canada suggests, endorsed it.
We are not, here, as Air Canada argued, dealing
with a Review Tribunal which has substituted its
assessment of safety on the flight deck for that of
Air Canada. Rather, we are dealing with a dis
criminatory practice which Air Canada has adopt
ed as a result of its assessment of risk to safety as
its pilots age. Air Canada is obliged by law to
prove, on a balance of probabilities, its practice to
be a bona fide occupational requirement. Etobi-
coke states the test in general terms. How that test
may appropriately be expressed in concrete terms
will depend on the particular circumstances in
each case. Perhaps, in other circumstances, the
question could be asked as simply as in Grey
hound. In the present case, I think it is entirely
consistent with Etobicoke to ask Air Canada to
prove that it would be impossible or impractical
for it to hire new pilots older than 27 and to deal
with its safety concerns as they age on an individu
al basis. That is, after all, what it does in fact in
respect of the pilots it does employ until they
reach 60.
One of the reasons advanced for the maximum
age 27 hiring policy was characterized "the age
reversal problem". It is described by the Review
Tribunal, at page 66 [D/1875 C.H.R.R.] of its
decision, in the following terms:
The age reversal problem involves potential conflict in the
cockpit where, because of the seniority system, a younger pilot
might be placed in command over a more recently-hired, but
older, pilot. The older person may question the authority of the
younger, leading to a critical breakdown in the chain-of-com
mand.
The Review Tribunal's assessment of the evidence
as to the problem, also at page 66 [page D/1875
C.H.R.R.], was:
Once again, the evidence in support of the problem involved
only isolated observations. It was, at best, impressionistic. It
was countered by evidence that age reversal is not uncommon
in military aviation and is not known to create problems there.
The Review Tribunal was entirely fair in so
describing the evidence. Had it been content to
stop there, no arguable error of law would have
arisen. However, it went on to observe:
To the extent that age reversal might create the problem
suggested, it would seem to do so only because of an attitude of
the older individual reflecting an age bias. An older pilot
questioning the authority of a younger pilot in command on the
basis of age is acting on the view that older age entitles one to a
superior position. If such attitudes can give rise to a bona fide
occupational requirement, then a whole variety of the most
objectionable forms of discrimination could be supported
because attitudes based on prejudice will in fact give rise to
problems if discrimination is not carried out. The objections of
existing employees to working with members of some other
group will undoubtedly give rise to problems if members of the
other group are employed. The employer could argue that this
created a bona fide occupational requirement excluding mem
bers of the other group from employment. This Tribunal is of
the view that this result would so clearly violate the intent of
the legislation that problems arising from attitudes which
reflect bias on a ground of discrimination prohibited under the
Canadian Human Rights Act cannot as a matter of law justify
a bona fide occupational requirement. For this reason, as well
as because there is not adequate evidence that age reversal is a
significant problem, age reversal does not support a bona fide
occupational requirement.
With respect, it was an error in law to conclude
that policy of the Canadian Human Rights Act
precluded a conclusion that the age reversal prob
lem could be the basis for a bona fide occupational
requirement. The policy of the Act is not only to
prohibit discrimination on the prescribed grounds
but to permit that discrimination where it is a
bona fide occupational requirement. The issue is to
be decided by application of the law to the facts as
found on the evidence, not on the basis of prefer
ring one policy objective over another. In my
opinion, this error in law did not affect the Review
Tribunal's decision. It had already reached its
conclusion as to the age reversal problem on a
proper basis. This error in law is, therefore, not a
ground for setting aside the decision pursuant to
section 28.
At page 68 [D/1876 C.H.R.R.], the Review
Tribunal referred to the evidence of the experts
called by Air Canada.
The evidence of Dr. St. Pierre and Dr. Busby emphasized
that the incidence of impairments increases with age which
supports distinctions based on age. In addition both doctors
were skeptical of the ability of medical science to adequately
detect impairing conditions. This led them to the conclusion
that, as the incidence of impairment increases with age, the risk
of undetected impairment increases, making age a justifiable
screening device against the resulting risk to safety in aircraft
operation.
At page 70 [D/1876 C.H.R.R.], it said:
The fallacy in the approach of Dr. St. Pierre and Dr. Busby
is that it tends to assume that a correlation between age and
impairment is not only a necessary, but also a sufficient, basis
to support age as a bona fide occupational requirement. The
basic premise of human rights legislation is that the merits of
the individual should be assessed. Otherwise, bona fide occupa
tional requirements might be established simply on the basis of
statistical averages of group characteristics. This would merely
be stereotyping in a new format which is, if anything, more
invidious than traditional prejudices because it has an appar
ently scientific base.
A similar statement appears at page 77. In fairness
to the Review Tribunal, it is to be noted that it did
take the same view of evidence on the same point
by the respondents' expert, Dr. Mohler. That is not
raised as an error in this application.
I fail to see that an age-related impairment
proved to be a necessary basis for a bona fide
occupational requirement could, somehow, be
found not to be a sufficient basis. Here again the
Review Tribunal erred in law, apparently for the
same policy-related reason as in respect of the age
reversal problem. As stated, it was an error in law
to permit a preference as between policies to influ
ence its objective consideration of the evidence.
The Review Tribunal also erred in its rejection
of statistical evidence. Relevant statistical evidence
is entirely admissible and not to be rejected out of
hand. It may well establish that it is at least
impractical to deal with a class of employees
individually and that, in respect of them, a dis-
criminatory practice is, in fact, a well-founded
bona fide occupational requirement.
Finally, error is alleged in the burden imposed
on Air Canada. It argues that, to meet the objec
tive test of Etobicoke, it was sufficient that it
prove the fact of the ongoing medical debate on
the effect of aging on pilots' safe performance.
That proved, it was, in its submission, entitled to
assume that, upon resolution, the most pessimistic
position would turn out to be the case and to
respond to that with its hiring policy. Any other
response would be imprudent. To require it to
prove more led effectively to a usurpation by the
Review Tribunal of Air Canada's obligation and
responsibility for the safe operation of its airline.
The respondents argue that the objective test of
Etobicoke required proof of a real risk, not merely
that there was a basis for a reasonable apprehen
sion of risk.
I think it unwise to attempt to resolve that issue
in an essentially hypothetical situation. If it was an
issue at all in this case, it related directly to a
collateral matter and only indirectly to the issue at
hand: the justification for the maximum-hiring-
age policy. In this respect, it is like the errors in
the Review Tribunal's approach to the expert and
statistical evidence. Those were errors; this may
have been, but none were central to the real issue.
All were made in the Review Tribunal's consider
ation of the effects of aging on pilots and the
resulting safety concerns; none were made in its
consideration of the connection between the policy
in issue and those concerns and risks.
Assuming, without deciding, that the effects of
pilot aging on safety are as dire as any evidence
suggested might be the case, where Air Canada
failed was in establishing credible linkage between
those risks and its maximum-hiring-age of 27
policy, so as to prove that policy to be a bona fide
occupational requirement based on its safety con
cerns. The Review Tribunal did not err in that
conclusion. Air Canada did not, in this proceeding,
challenge the conclusion that the policy could not
stand on economic grounds.
I would dismiss this section 28 application.
STONE J.: I agree.
* * *
The following are the reasons for judgment
rendered in English by
MACGUIGAN J.: This section 28 application is
the first case of age discrimination relating to the
age of entry into employment to reach the Canadi-
an courts.
The five complainants (the respondents herein,
along with the Canadian Human Rights Commis
sion) ranged in age from 32 to 41 at the effective
date of their rejection as pilots by Air Canada
between March and September of 1978. They all
allege that, by refusing to employ them as pilots
because of their age, Air Canada committed a
discriminatory practice under both sections 7 and
10 of the Canadian Human Rights Act. Air
Canada justified its age preference as a bona fide
occupational requirement (sFOR) under paragraph
14(a). '
The relevant sections of that Act read 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; and
' Counsel for both parties agreed that no distinction should
be made among a bona fide occupational requirement (BFOR),
a bona fide occupational qualification (BFoQ), and a bona fide
occupational qualification and requirement. I therefore utilize
whichever phrase is employed by the legislation I am referring
to at the time.
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.
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.
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;
Air Canada's pilot hiring policy from August
1978 to the present has been as follows:
To Qualify For A Board Interview
* Recommendation from Base interview.
* Preferences:
1. Aviation Graduate or Military Training.
2. University Degree.
3. Other (Minimum University Entrance).
To Qualify For A Base Interview
* Update since last review of files.
* Currently employed as a pilot.
* 20/20 vision. Note: Applicants may be considered with less
than 20/20 vision, if it is correctable to 20/20 with glasses
and medically approved by the Senior Medical Officer—Air,
prior to Base interview.
* Canadian Citizen or Landed Immigrant.
Experience
Age: Over 27—ATR, plus special qualifications, such as
Military or Airline experience, aviation graduate and
University Degree, etc.
25-27—ATR or Senior Commercial, Class I Multi-
Instrument Rating.
Preferences:
I. Aviation Graduate or Military Training.
2. University Degree.
3. Other (Minimum University Entrance).
20-25—Commercial or higher licence, Class I Multi-
Instrument Rating, over 700 hours flying time.
Preferences:
1. Aviation Graduate or Military Training.
2. University Degree.
3. Other (Minimum University Entrance).
To Qualify For Active File
* Not over 27, unless [Air Transport Rating] qualified, and
* Not over 29, unless ATR and special qualifications, e.g. high
time, University Degree, Aviation Graduate, Military Train
ing, etc.
* 20/20 vision. Note: Applicants may be considered with less
than 20/20 vision, if it is correctable to 20/20 with glasses
and medically approved by the Senior Medical Officer—Air,
prior to a Base interview. Maximum of 20/50 allowed.
* Canadian Citizen or Landed Immigrant.
* Update within two years.
* Actively flying.
* University Entrance.
* Not over 31 years old, unless special qualifications present.
Otherwise—Inactive
Three of the five complainants were rejected
under this policy. The other two complainants
were rejected under policies which were substan
tially identical.
It will be noted that Air Canada has no absolute
bar to hirings even over the age of 31, but section
10 of the Act establishes that a discriminatory
practice can be either a policy or a practice, and
that it need go no further than to tend to deprive
an individual or class of individuals of any employ
ment opportunities on a prohibited ground of dis
crimination, and section 7 effectively requires only
that there be age-related differential treatment. It
was admitted by the applicant that, as a practical
matter, the age of 31 was a cut-off point for Air
Canada pilot intake and that there was a prefer
ence in hiring for those 27 or younger. According
ly, the identical decisions of both the original
Tribunal of March 18, 1982, and that of the
Review Tribunal of October 26, 1983, that there
was a prima facie breach of sections 7 and 10, was
not challenged before this Court.
In the estimation of both parties the leading
case on age discrimination is Ontario Human
Rights Commission et al. v. Borough of Etobi-
coke, [1982] 1 S.C.R. 202; 132 D.L.R. (3d) 14 in
which the Supreme Court of Canada had to con
sider a mandatory retirement age of 60 for firemen
in the light of the provisions of the Ontario Human
Rights Code R.S.O. 1970, c. 318. The Court held
that the onus on the employer of proving that the
age restriction was warranted was not discharged
by impressionistic evidence that firefighting is a
young man's game.
The principles laid down by McIntyre J. for the
Court (at pages 207-213 S.C.R.; pages 19-23
D.L.R.) are highly relevant to the instant case:
The case at bar involves complaints of discrimination in
respect of employment on account of age. It was common
ground that the compulsory retirement at age sixty constituted
a refusal to employ or continue to employ the complainants.
While discrimination on the basis of age is in terms forbidden
in s. 4 of the Code, in accordance with subs. (6) an employer
may discriminate on that basis where age is a bona fide
occupational qualification and requirement for the position or
employment involved. Where such bona fide occupational
qualification and requirement is shown the employer is entitled
to retire employees regardless of their individual capacities,
provided only that they have attained the stated age. It will be
seen at once that under the Code non-discrimination is the rule
of general application and discrimination, where permitted, is
the exception.
Once a complainant has established before a board of inquiry
a prima facie case of discrimination, in this case proof of a
mandatory retirement at age sixty as a condition of employ
ment, he is entitled to relief in the absence of justification by
the employer. The only justification which can avail the
employer in the case at bar, is the proof, the burden of which
lies upon him, that such compulsory retirement is a bona fide
occupational qualification and requirement for the employment
concerned. The proof, in my view, must be made according to
the ordinary civil standard of proof, that is upon a balance of
probabilities.
Two questions must be considered by the Court. Firstly, what
is a bona fide occupational qualification and requirement
within s. 4(6) of the Code and, secondly, was it shown by the
employer that the mandatory retirement provisions complained
of could so qualify? ... To be a bona fide occupational
qualification and requirement a limitation, such as a mandato
ry 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 econo
my, and not for ulterior or extraneous reasons aimed at objec
tives 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.
The answer to the second question will depend in this, as in
all cases, upon a consideration of the evidence and of the nature
of the employment concerned. As far as the subjective element
of the matter is concerned, there was no evidence to indicate
that the motives of the employer were other than honest and in
good faith in the sense described. It will be the objective aspect
of the test which will concern us. We all age chronologically at
the same rate, but aging in what has been termed the functional
sense proceeds at widely varying rates and is largely unpredict
able. In cases where concern for the employee's capacity is
largely economic, that is where the employer's concern is one of
productivity, and the circumstances of employment require no
special skills that may diminish significantly with aging, or
involve any unusual dangers to employees or the public that
may be compounded by aging, it may be difficult, if not
impossible, to demonstrate that a mandatory retirement at a
fixed age, without regard to individual capacity, may be validly
imposed under the Code. In such employment, as capacity fails,
and as such failure becomes evident, individuals may be dis
charged or retired for cause.
Faced with the uncertainty of the aging process an employer
has, it seems to me, two alternatives. He may establish a
retirement age at sixty-five or over, in which case he would
escape the charge of discrimination on the basis of age under
the Code. On the other hand, he may, in certain types of
employment, particularly in those affecting public safety such
as that of airline pilots, train and bus drivers, police and
firemen, consider that the risk of unpredictable individual
human failure involved in continuing all employees to age
sixty-five may be such that an arbitrary retirement age may be
justified for application to all employees. In the case at bar it
may be said that the employment falls into that category.
While it is no doubt true that some below the age of sixty may
become unfit for firefighting and many above that age may
remain fit, recognition of this proposition affords no assistance
in resolving the second question. In an occupation where, as in
the case at bar, the employer seeks to justify the retirement in
the interests of public safety, to decide whether a bona fide
occupational qualification and requirement has been shown the
board of inquiry and the court must consider whether the
evidence adduced justifies the conclusion that there is sufficient
risk of employee failure in those over the mandatory retirement
age to warrant the early retirement in the interests of safety of
the employee, his fellow employees and the public at large.
It would be unwise to attempt to lay down any fixed rule
covering the nature and sufficiency of the evidence required to
justify a mandatory retirement below the age of sixty-five
under the provisions of s. 4(6) of the Code. In the final analysis
the board of inquiry, subject always to the rights of appeal
under s. 14d of the Code, must be the judge of such matters. In
dealing with the question of a mandatory retirement age it
would seem that evidence as to the duties to be performed and
the relationship between the aging process and the safe, effi
cient performance of those duties would be imperative. Many
factors whould [sic] be involved and it would seem to be
essential that the evidence should cover the detailed nature of
the duties to be performed, the conditions existing in the work
place, and the effect of such conditions upon employees, par
ticularly upon those at or near the retirement age sought to be
supported. The aging process is one which has involved the
attention of the medical profession and it has been the subject
of substantial and continuing research. Where a limitation
upon continued employment must depend for its validity on
proof of a danger to public safety by the continuation in
employment of people over a certain age, it would appear to be
necessary in order to discharge the burden of proof resting upon
the employer to adduce evidence upon this subject.
I am by no means entirely certain what may be characterized
as "scientific evidence". I am far from saying that in all cases
some "scientific evidence" will be necessary. It seems to me,
however, that in cases such as this, statistical and medical
evidence based upon observation and research on the question
of aging, if not in all cases absolutely necessary, will certainly
be more persuasive than the testimony of persons, albeit with
great experience in firefighting, to the effect that firefighting is
"a young man's game". My review of the evidence leads me to
agree with the board of inquiry. While the evidence given and
the views expressed were, I am sure, honestly advanced, they
were, in my view, properly described as "impressionistic" and
were of insufficient weight. The question of sufficiency and the
nature of evidence in such matters has been discussed in various
cases, and of particular interest are: Hodgson v. Greyhound
Lines, Inc., 499 F. 2d 859 (1974); Little v. Saint John Ship
building and Drydock Co. Ltd. (1980), 1 C.H.R.R. 1. [Empha-
sis added.]
The applicant contends that, on the basis of the
Etobicoke case, to establish a BFOR it need show
only a rational basis in fact that elimination of its
maximum hiring age will increase the likelihood of
risk of harm to its passengers, even if that
increased likelihood is only minimal.
The Supreme Court makes clear in Etobicoke
that, once a prima facie case of discrimination is
established by the complainant, an employer must
establish a BFOR both subjectively and objectively.
The standard of proof that is imposed on an
employer is squarely stated by McIntyre J. to be
the ordinary civil standard of a balance of
probabilities. Obviously, this standard would apply
both to the objective and to the subjective elements
that have to be proved.
The parties here agree, and both Tribunals
found, that Air Canada was acting in subjective
good faith. Joinder of issue therefore takes place
over the objective test, which the Court describes
as a test of reasonable necessity.
In delineating an objective approach, the Court
distinguishes between cases where the employer's
concern for his employee's capacity is largely
economically self-interested and those where it is
largely for the sake of public safety. In the former
the key factor is the availability of alternatives to a
general policy of mandatory retirement: "as
capacity fails, and as such failure becomes evident,
individuals may be discharged or retired for
cause" (supra). In the latter, involving aviation
pilots, train and bus drivers, police and firemen,
the issue is the degree of risk to the public, since it
may be such as to justify an arbitrary retirement
age: is there "sufficient risk of employee failure in
those over the mandatory retirement age to war-
rant the early retirement" (supra)? Counsel for
the applicant in the instant case understandably
chose to rest his argument on his stronger ground
of justification on the basis of public safety.
As analyzed by McIntyre J., the two factors of
the degree of public risk and the availability of
alternatives to the employer are inversely propor
tional, and have to be weighed against each other
to determine the proper balance: where there is
small risk to public safety, available alternatives to
the occupational requirement will readily be dis
cerned; where the risk is great, suggested alterna
tives will be scrutinized more carefully.
The applicant argues that the citation of the
American case of Hodgson v. Greyhound Lines,
Inc., 499 F.2d 859 (7th Cir. 1974), certiorari
denied 95 S. Ct. 805 (1975), by the Supreme
Court indicates approval of its reasoning, so that it
is in effect the best interpretation of the Etobicoke
case. In that case, too, a maximum hiring-age
policy was in question, and the U.S. Court of
Appeals, Seventh Circuit, adopted the position
that even a potential increase of risk of harm was
sufficient to justify a bona fide occupational
qualification (BF0Q) for an employer (at pages
863-865):
... Greyhound must demonstrate that it has a rational basis in
fact to believe that elimination of its maximum hiring age will
increase the likelihood of risk of harm to its passengers. Grey
hound need only demonstrate however a minimal increase in
risk of harm for it is enough to show that elimination of the
hiring policy might jeopardize the life of one more person than
might otherwise occur under the present hiring practice.
In our view Greyhound's position as to the potential increase of
risk of harm which would be incurred by the elimination of its
maximum hiring age is well-founded and grounded on an
adequate factual basis. Greyhound need not establish its belief
to the certainty demanded by the Government and the district
court for to do so would effectively require Greyhound to go so
far as to experiment with the lives of passengers in order to
produce statistical evidence pertaining to the capabilities of
newly hired applicants forty to sixty-five years of age. Grey
hound has amply demonstrated that its maximum hiring age
policy is founded upon a good faith judgment concerning the
safety needs of its passengers and others. It has established that
its hiring policy is not the result of an arbitrary belief lacking in
objective reason or rationale. [Emphasis added.]
The words of McIntyre J. in referring to the
Greyhound case do not in themselves make clear
the degree of approbation he means to bestow, but
a direct clue as to his intention is provided by the
fact that he cites together with it the New Bruns-
wick Board of Inquiry decision in Little v. Saint
John Shipbuilding and Drydock Co. Ltd.
(1980), 1 C.H.R.R. D/1. The Little case involved
the mandatory retirement of a bridge crane opera
tor at the age of 65. Not only did the Board decide
the case contrary to the result in Greyhound (the
complainant was reinstated, subject to medical
testing) but the dicta are contrary to those in the
American case. In commenting on the bus driver
situation considered in Greyhound the Board said
(at pages D/5-D/7):
Obviously in this situation it is a question of being able to
determine what is the minimum acceptable risk factor. In
making the policy decision that age is not to be a factor in the
employment policies of employers, the legislature may have
coincidentally made a decision that society must be prepared to
accept an added risk which may attend the prohibition of any
discrimination on the basis of age ....
... if the Code prohibits mandatory retirement on the basis of
chronological age, it will be necessary to develop very sophis
ticated means of testing and determining whether one's biologi
cal age has reached the stage where it reasonably affects one's
ability to perform the functions of the job. This may mean the
acceptance, in some situations, of a greater risk to public safety
than existed previously. It would appear that, even in the most
ideal situations, it is often necessary to accept less than the
optimal performance possible given some of the practical reali
ties that exist. As long as these risks to public safety do not
exceed a minimally acceptable standard the abolition of man
datory retirement age would not appear to create undue prob
lems. [Emphasis added.]
There is a world of difference between "a mini
mal increase in risk of harm" and "a minimally
acceptable risk of harm", because the latter
implies a measure of acceptability of risk that the
former does not. Matheson J. was quite right to
insist, in Moose Jaw v. Sask. Human Rights
Comm., [1984] 4 W.W.R. 468 (Sask. Q.B.), that
the "sufficient risk" test of Etobicoke cannot be
equated with an "intolerable risk", but the notion
that the American courts endorse an "intolerable
risk" approach is erroneous.
An examination of the cases cited by McIntyre
J. thus makes it clear that he did not intend by his
reference to give approval to a particular measure
of risk. Nevertheless his own posing of the issue in
terms of whether there is "sufficient risk of
employee failure" indicates a recognition of a cer
tain degree of risk that sits better with the notion
of "acceptable" than with that of "minimal".
It is worth noting that the Greyhound approach
has had far from unanimous support in American
courts, though the same approach was taken in
Murnane v. American Airlines, Inc., 667 F.2d 98
(1981), 100-101, certiorari denied 102 S. Ct. 1770
(1982), where the District of Columbia Court of
Appeals upheld an age forty guideline as a BFOQ:
Appellant contends that the district court's finding indicates
only a marginal increase in the safety of the passengers on an
American aircraft, and that such marginal safety is insufficient
to support a blanket age rule. He asserts that a BFOQ cannot
be supported by a minimal increase in safety when balanced
against the fact that many potential applicants will not be able
to pursue their chosen careers. We disagree.
[2] Indeed, on the contrary, we find the maximization of
safety to be "reasonably necessary to the normal operation" of
American Airlines. The safe transportation of its passengers is
the essence of American's business ... Therefore, in our judg
ment, the airline industry must be accorded great leeway and
discretion in determining the manner in which it may be
operated most safely ... This is in accord with American's
view that "safe" is not sufficient. Rather the "safest" possible
air transportation is the ultimate goal. Courts, in our view, do
not possess the expertise with which, in a cause presenting
safety as the critical element, to supplant their judgment for
those of the employer.
The airline's mandatory "up or out" policy for
its pilots, combined with the 10-to-15-year pro-
gram for advancement to captain was a material
fact in this case, since a person hired as a flight
officer in his 40's would consequently be able to
serve only briefly as a captain before compulsory
retirement at 60.
Seven days after the Murnane decision and
without reference to it, the U.S. Court of Appeals
for the Fourth Circuit decided Smallwood v.
United Air Lines, Inc., 661 F.2d 303 (1981), 307,
certiorari denied 102 S. Ct. 2299 (1982), rejecting
another airline's rule denying employment to pilot
applicants over the age of 35 as a BFOQ:
To justify a refusal to hire under the BFOQ exception con
tained in the Age Discrimination in Employment Act, the
burden is on the employer to meet a two-prong test:
(1) that the BFOQ which it invokes is reasonably necessary
to the essence of its business ... and (2) that the employer
has reasonable cause, i.e., a factual basis for believing that
all or substantially all persons within the class ... would be
unable to perform safely and efficiently the duties of the job
involved, or that it is impossible or impractical to deal with
persons over the age limit on an individualized basis.
The Court added that the BFOQ exception is to be
"narrowly applied" (supra, at page 307).
It is this passage which I have just set out that
the Review Tribunal quoted with the comment
that "In our opinion, this test is substantively
similar to the one set forth in Etobicoke by the
Supreme Court of Canada". The applicant sub
mits that that point of view amounts to an error on
the face of the record.
Before taking up that point, I would just note
that the same Seventh Circuit Court of Appeals
that decided Greyhound refused to give it full faith
and credit, as it were, in a mandatory-retirement-
at-55 case involving an assistant fire chief: Orzel v.
City of Wauwatosa Fire Dept., 697 F.2d 743
(1983), 752-753:
Citing this court's decision in Hodgson y Greyhound Lines,
Inc., ... the City argues that it should only have been required
to show that it made a "good faith judgment concerning the
safety needs" of its citizens, and that its mandatory retirement
policy should be upheld as long as that policy is "not the result
of an arbitrary belief lacking in objective reason or rationale"
... We reject such an expansive reading of the Greyhound
decision ....
We thus read Greyhound as supporting the view that, in
order to prevail on a BFOQ defense, an employer must show
that the challenged age qualification is reasonably related to
the "essential operation" of its business, and must demonstrate
either that there is a factual basis for believing that all or
substantially all persons above the age limit would be unable to
effectively perform the duties of the job, or that it is impossible
or impracticable to determine job fitness on an individualized
basis. Such a two-pronged interpretation of the BFOQ defense
is consistent with the standard adopted by the Fifth Circuit in
Usery v. Tamiani Tours, Inc., 531 F. 2d 224, 235-36 (5th Cir.
1976), which relied on the same Fifth Circuit cases cited by the
Greyhound court: it also accords with the approach taken by
virtually every other circuit that has addressed the scope of the
BFOQ exception.
The contention on behalf of Air Canada here is
exactly the same as that rejected by the Orzel
Court, viz., that a BFOR is established by the
employer's showing a rational basis in fact for his
belief that it diminishes the risk of harm. In
argument in the instant case, counsel took the
position that, where there are two or three rational
factual positions based on expert evidence, a tri
bunal has no option but to accept an employer's
choice. Whatever else this may be, it is not proof
on a balance of probabilities, and in fact the
applicant argued that that standard of proof
applied only to showing that there was a rational
basis in fact, not to proving that it was more
probable than other hypotheses. This goes along
with the notion that a minimal risk to public safety
justifies a BFOR.
I believe analysis of Etobicoke here demon
strates that this cannot be its meaning, because
such a reading would not square either with the
standard of proof it requires or with the necessity
of a sufficiency of risk for justification.
To say what Etobicoke does not mean does not
yet establish what it does stand for with sufficient
precision to apply it. The Review Tribunal, as I
have mentioned, found the two-pronged Small-
wood v. United Airlines, Inc. test to be "substan-
tively similar". I would myself describe it as an
extension of the Etobicoke ratio, but in continuity
with it.
Etobicoke identified the two inversely propor
tional factors of the degree of risk and the availa
bility of alternative as determinative of a BFOR,
objectively considered, leaving the balancing to be
arrived at in relation to all the circumstances. The
two-pronged American test may be seen as a more
proximate stage in the determination of a BFOR.
According to the American test the first prong
in the employer's burden of proof is to show that
the BFOR it invokes is reasonably necessary to the
essence of its business; this is the risk-safety ele
ment and could be satisfied by proving that the
maximum hiring-age requirement is reasonably
necessary for public safety, which is admittedly of
the essence of an air carrier's business. The second
prong is for the employer to show that it has
reasonable cause for believing that all or substan
tially all persons within the class would be unable
to perform the duties of the position safely and
effectively, or that it would be impossible or
impracticable to safeguard public safety through
individualized testing; this is the availability-of-
alternatives factor and could be satisfied by prov
ing that, although safety was not imperilled by the
results of aging in more than a few cases, it could
not be effectively safeguarded by individualized
testing, on the basis of our present scientific
capabilities.
As I read the evidence, Air Canada might well
have failed on both prongs of this proximate test,
but the Review Tribunal, after endorsing the
American test, nevertheless appears to have
reached the same result entirely on the basis of the
more general language of the Etobicoke test. It
would be hard to find fault with this description of
the Review Tribunal's responsibility [at page
D/1876]:
The correct legal test of a bona fide occupational require
ment as stated in the Etobicoke case, is whether the require
ment is reasonably necessary to the performance of the job.
This means the Tribunal must examine both the necessity of
the rule and the reasonableness of the rule in the light of that
necessity.
It will not, however, escape notice that this
amplification of the Etobicoke rule might also be
described as a more summary version of the
American rule. In any event, the approach it
describes is in my view good law in Canada, and I
therefore turn to the application of this law by the
Review Tribunal to the evidence on the record.
The strongest evidentiary support of age as a
BFOR for airline pilots is the medical evidence.
This evidence as to both physical and psychologi
cal factors is contained in the direct testimony of
three medical doctors and in two congressionally-
mandated 1981 reports, one from the Institute of
Medicine of the National Academy of Sciences,
the other from the National Institute on Aging of
the National Institutes of Health.
Both U.S. scientific reports focussed on the
question of a mandatory retirement age for pilots.
The IOM study identified the two medical concerns
that led to the age-60 rule as follows: (1) increased
probability of sudden death or acute incapacita-
tion, which would greatly compromise pilot safety
were they to occur while the pilot was at the
controls of the airplane, and (2) increased proba
bility of subtle incapacitation that would lead to
errors or slowing in perceptual, cognitive, and
psychomotor function, and thus compromise safe
pilot performance. The Committee felt that risk-
factor profiles and a more thorough testing of high
risk individuals are adequate to identify those
pilots whose health status would represent a risk to
safety because of possible acute incapacitation.
With respect to subtle incapacitation their conclu
sion was that well-practised skills would show
little, if any, age-related decline.
The NIA study, which took the IoM views into
account, concluded that the age-60 limit should be
retained for the present for pilots in command and
first officers, but that further studies should be
conducted with a view to ultimate relaxation of the
rule.
At its maximum, the medical evidence in the
record suggests that any noticeable increase in
health impairment does not begin before age 40. In
the age range above 40, there may therefore be an
arguable case that age is a BFOR for pilots, but no
such case can be made on medical grounds below
40. The applicant had consequently to attempt to
defend an age-27 pilot intake policy on three other
grounds: (1) age decrements can be compensated
for by experience with standard operating proce
dures through progressive learning situations, but
only if that experience is with the unvarying proce
dures of the same airline; (2) the early hiring of
pilots permits the airline to develop longitudinal
medical records for each pilot and to implement a
health maintenance program which can promote
both safe operation and career longevity; (3) the
general practice in the industry, particularly
among IATA carriers.
Experience compensation is generally accepted
as an offsetting benefit of aging, but the evidence
on the record that the differences between the
procedures of different airlines are so great that
the experience has to be with the same airline is
very weak. Also, longitudinal medical records are
no doubt valuable in alerting medical personnel to
signs of aging, but there was no evidence that they
are needed for any particular number of years
before age 40, or that if they were, they could not
be made available by a previous employer. Finally,
while the general practice in the industry undoubt
edly favors a low maximum hiring age, even the
status quo cannot alone sufficiently establish a
BFOR, in the absence of other proof. In sum, the
evidence supporting the applicant's case is impres
sionistic at best, and is in my judgment close to
non-existent. I therefore find fully justified by the
record the following summation of the evidence by
the Review Tribunal [at page D/1879 C.H.R.R.]:
In summary, the medical evidence indicates that there is
some basis for claiming that age is a bona fide occupational
requirement for the hiring of pilots because of the risk of
impairment which increases with age. However, because the
continued employment of pilots up to the age of 60 indicates
that the risk is acceptable up to that age, because the risk can
be substantially eliminated or reduced through medical detec
tion of the impairing condition and by the back-up system of
the three-pilot team, and because, with the exception of cardi
ovascular problems, the evidence does not in any event show
that the risk of serious undetected impairment is significant in
the age range with which we are concerned, the Tribunal
concludes that the medical concerns listed above do not make it
reasonably necessary for Air Canada to impose its present age
preference in hiring to maintain its margin of safety in the
operation of its aircraft. With respect to cardiovascular prob
lems, the first two reasons for concluding that the test of
reasonable necessity has not been met still persuade the Tri
bunal to the same conclusion, although the risk of serious
impairment is recognized to exist, as it exists for presently
employed pilots over 40 who were hired at younger ages.
Assessment of the capability of the individual, regardless of
age, provides an alternative which is both legally preferable and
adequate.
The Review Tribunal's finding [at page D/1883]
in relation to the economic arguments is equally
exemplary:
In order to make a case that a bona fide occupational
requirement is reasonably necessary as a matter of economic
cost, far more evidence as to the actual cost and benefit
implications is necessary than has been provided to the Tri
bunal. The evidence does not provide any basis for deciding
what is the minimum period over which Air Canada can
reasonably be expected to amortize the cost of hiring a new
pilot. Since the burden of proof with respect to the BFOQ
defence falls upon the employer, this is fatal to Air Canada's
claim for a BFOQ with respect to hiring at age 27 on the basis
of hiring costs.
This aspect of the case was not in any event
pressed before this Court.
In sum, there is no justification under subsection
28(1) of the Federal Court Act for setting aside
the decision of the Review Tribunal. It did not fail
to observe natural justice, or depart from its juris
diction, or err in law or make an erroneous finding
of fact perversely or capriciously or without regard
for the record. Any mistakes it may have made
were isolated or trivial or the result of infelicitous
expression. It is on the latter basis that I would
account for its apparent interpretation of the age
reversal evidence or of Air Canada's medical evi
dence, as noted by my brother Mahoney J. As I
understand what the Review Tribunal intended, it
was not so much to read the evidence in the light
of its policy preferences as to insist on a narrow
application of the BFOR exception as recommended
by Smallwood v. United Air Lines, Inc., supra.
As is evidenced by section 2 of the Canadian
Human Rights Act, Parliament has made a funda
mental decision to give preference to individual
opportunity over competing social values. The
preference is not absolute. Indeed, it is limited in
the present context by an employer's right to
establish a bona fide occupational requirement.
But the courts must be zealous to ensure that
Parliament's primary intention that people should
for the most part be judged on their own merits
rather than on group characteristics is not eroded
by overly generous exceptions. This necessitates a
narrow interpretation of the exceptions.
I would dismiss the application.
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.