Judgments

[1994] 3 .F.C. 188

A-799-91

Canadian Human Rights Commission (Applicant)

v.

Canadian Armed Forces (Respondent)

and

Julia Husband (Mise en cause)

Indexed as: Canada (Human Rights Commission) v. Canada (Armed Forces) (C.A.)

Court of Appeal, Isaac C.J., Robertson and McDonald JJ.A.—Winnipeg, October 15, 1993; Ottawa, April 14, 1994.

Human rights — Application to set aside CHRT’s dismissal of complaint Canadian Armed Forces (CAF) discriminating against complainant based on physical disability — Application for direct entry position as musician with CAF rejected because eyesight not meeting minimum CAF entry standard — Majority holding eyesight standard constituting discrimination, but bona fide occupational requirement (BFOR) — Applying test in Ontario Human Rights Commission et al. v. Borough of Etobicoke, i.e. minimum standard reasonably necessary to assure efficient, economical performance of job without endangering employee, fellow employees, public — Assessing BFOR issue against primary role as soldier — Application dismissed — Complainant seeking entry to CAF as soldier first, musician second — Test for determining sufficient risk in public safety cases set out in Etobicoke — Subsequent cases not establishing new test of “substantial risk” — Basic training not effective method of testing whether particular disability affected ability to perform military occupation without endangering self, fellow employees, public.

Armed forces — Canadian Armed Forces rejecting application for direct entry position as musician for failure to meet minimum visual acuity standard — CHRT correctly assessing complainant as soldier first, musician second — Holding types of activities performed by military carrying reasonable risk of loss, breakage of corrective lenses — Correctly applying test in Ontario Human Rights Commission et al. v. Borough of Etobicoke in finding minimum entry standard discrimination, but bona fide occupational requirement — Basic training not effective method of testing whether particular disability affected ability to perform military occupation without endangering self, fellow employees, public.

This was an application to set aside the Canadian Human Rights Tribunal’s dismissal of Julia Husband’s complaint that the Canadian Armed Forces (CAF) had discriminated against her by reason of her visual disability. The complainant had applied for a direct entry position as a musician with the CAF. A direct entry position is one in which the candidate fills a designated position. Candidates are judged initially on their musical abilities and then, on recommendation, they are made a recruitment offer. Once recruited, they must, like all other recruits, pass basic training. Although the complainant’s musical skills qualified her for the position, her eyesight did not meet the minimum entry standard for the CAF. The complainant, who usually wore corrective lenses except when sleeping, sitting and listening to music, was categorized as “legally blind”. Her application for entry as a regular member was rejected. The majority of the Tribunal concluded that the types of activities which must be performed by members of the military carry with them a reasonable risk of the loss, breakage or other problems associated with the use of corrective lenses. It held that the entry level standard for visual acuity, while constituting discrimination based on disability, was a bona fide occupational requirement and was therefore not a discriminatory practice. It expressly found that the minimum standard for visual acuity for entry into the CAF had met the objective test laid down in Ontario Human Rights Commission et al. v. Borough of Etobicoke, i.e. that the minimum standard was reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, her fellow employees and the general public. The majority concluded that the issue whether the visual acuity standard amounted to a BFOR had to be assessed against the primary role that the complainant would be required to play as a regular member of the CAF (i.e. as a soldier). Regular members of the CAF are liable to go anywhere and to perform any lawful duties required of the CAF, although one might spend an entire career without involvement in a military crisis. The dissenting member concluded that the entry standard should be assessed against the complainant’s role as a musician. The issue was whether the visual acuity standard was a BFOR. The applicant argued that the Tribunal had applied the wrong test to determine the risk of employee failure, contending that the proper test was that propounded in Central Alberta Dairy Pool v. Alberta (Human Rights Commission), which it argued had overruled the earlier Supreme Court of Canada decision in Bhinder et al. v. Canadian National Railway Co. et al. and this Court’s decision in Canadian Pacific Ltd. v. Canada (Canadian Human Rights Commission) (Mahon). It submitted that a marginal risk was not enough to satisfy the test for determining the “sufficient risk of employee failure” as propounded in Etobicoke and that Dairy Pool laid down a new test of “substantial” risk. The applicant also submitted that the Tribunal had erred in denying the complainant the opportunity to undergo basic training. It argued that the complainant should be allowed to become a member of the CAF if she successfully completed its basic training programme. The CAF objected on the ground that the complainant was entitled to “individual testing” only in respect of her visual acuity and that her visual disability would expose her and other CAF members to risk of injury during basic training.

Held (Robertson J.A. dissenting), the application should be dismissed.

Per Isaac C.J. (McDonald J.A. concurring): The occupation into which the complainant was seeking entry and to which the standard applied was that of a soldier first and musician second. The conclusion that the occupation to which the standard applied was primarily that of a soldier was one of fact. This conclusion was based on the preponderance of evidence and one which the majority was entitled to make. The dissenting member’s conclusion that the entry standard should be assessed against the occupation of musician, was reached in the face of overwhelming evidence to the contrary.

The applicant’s complaint concerning the majority’s conclusion as to “sufficiency of risk” of employee failure was an attack on findings of fact, not normally reviewable under Federal Court Act, section 28.

Neither Bhinder nor Mahon propounded any new test for determining “sufficient risk” in public safety cases. The test applied in each case was that propounded in Etobicoke, which remains unchallenged and unimpaired. Dairy Pool had not effectively overruled either Bhinder or Mahon in so far as they can be said to have propounded a test for sufficient risk. Dairy Pool had not laid down any new test of “substantial risk” in substitution for the test of “sufficient risk” propounded in Etobicoke. The majority did not err in failing to apply the test of “substantial risk” said to have been laid down in Dairy Pool.

As to the complaint concerning the denial of an opportunity to undertake basic training in order to determine whether the complainant was fit to become a regular member, since this was a case of direct discrimination, the question of individual characteristics were irrelevant as justification for the standard. Nevertheless, the Tribunal majority did consider the issue, finding that the complainant needed corrective lenses to function in a military or musical environment. There was no reviewable error in its conclusion that having the complainant complete basic training would not be an effective method of testing to see whether her particular disability affected her ability to perform the military occupation efficiently and economically without endangering herself, her fellow employees and the general public.

Per Robertson J.A. (dissenting): A BFOR will be established if there is a “sufficient risk of employee failure” to warrant retention of an otherwise discriminatory employment qualification. Whether or not an occupational requirement is “reasonably necessary” is dependent on whether members of the group alleging discrimination pose sufficient risk of harm to themselves or others in the event of employee failure. The problematic determination was the degree of risk which presents a “sufficient risk of employee failure” to justify upholding an otherwise discriminatory rule. This Court and the Supreme Court have agreed that at least some increase in risk of harm is necessary to establish a BFOR, but there have been divergent approaches to the quantification of the risk. Prior to Bhinder this Court was not prepared to accept that a minimal or marginal increase in risk of harm justified a BFOR. The validity of the “minimal” standard articulated in Bhinder was expressly doubted in obiter dictum by Wilson J. in Dairy Pool. The Dairy Pool approach has been embraced by this Court, albeit in obiter dictum. The so-called “minimal” standard represents a serious threat to the attainment of objectives underlying human rights legislation. It could easily circumvent the purpose of the Act and deprive persons of the right to equal opportunity. Ultimately, it must be accepted that persons with a disability will always pose a greater risk of harm than other members of society. The proper standard, outlined in Dairy Pool, embraces a “substantial” increase in safety risk within tolerable limits. The express doubt cast by the Supreme Court on the Bhinder standard provided a legal basis upon which to depart from the earlier jurisprudence without offending the doctrine of stare decisis. Nothing would be gained by reverting to or insisting on a standard of risk assessment which fails to reflect society’s evolving appreciation of human rights. The Tribunal erred in applying the “minimal” standard. Once the proper standard is recognized and applied, it is a question of fact or of mixed fact and law whether in any one case the threshold standard has been satisfied. The factors impacting on risk assessment for BFORs are: what is the nature of the employment; what is the empirical, rather than speculative, likelihood of employee failure; is the risk of employee failure restricted to health and safety considerations; how serious is the potential harm arising from employee failure?

Application of the “soldier first” policy in the recruitment context was correct. Those who seek entrance into the CAF must do so on the premise that they will be called upon to perform military duties. While it is unlikely that a musician would be placed in a combat-type situation, that is irrelevant when evaluating the risk of employee failure. Nor does the fact that the CAF has established a special classification for serving members who do not meet the minimal entry visual acuity standard detract from that. Stringent minimum entry standards are necessary as the physical capabilities of most CAF members will deteriorate with the natural aging process. The differential treatment accorded to recruits under the CAF’s minimum entry standards has a rational basis compatible with the objectives of the Act.

There was no basis on which to interfere with the Tribunal’s conclusion that basic training was an ineffective method for evaluating the risk of employee failure. The Tribunal correctly observed that basic training was probably not a very good testing procedure to measure how an individual will perform in a real emergency or in a wartime situation. It held that individual assessments would be inappropriate because of the difficulty, if not the impossibility, of replicating field conditions. Nothing would be gained by allowing the complainant to undertake basic training if it does not replicate wartime conditions. Even if basic training did duplicate wartime conditions sufficiently to evaluate the complainant’s ability to function effectively, the Court was not willing to risk the personal safety of the complainant and other CAF members.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 7, 10, 15(a).

Federal Court Act, R.S.C., 1985, c. F-7, s. 28 (as am. by S.C. 1990, c. 8, s. 8).

Individual’s Rights Protection Act, R.S.A. 1980, c. I-2.

National Defence Act, R.S.C., 1985, c. N-5, ss. 14, 31 (as am. by R.S.C., 1985 (lst Supp.), c. 31, s. 60, Sch. I, s. 14), 33 (as am. idem, s. 15), 34 (as am. idem).

CASES JUDICIALLY CONSIDERED

APPLIED:

Ontario Human Rights Commission et al. v. Borough of Etobicoke, [1982] 1 S.C.R. 202; (1982), 132 D.L.R. (3d) 14; 82 CLLC 17,005; 40 N.R. 159.

CONSIDERED:

Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489; (1990), 111 A.R. 241; 72 D.L.R. (4th) 417; [1990] 6 W.W.R. 193; 76 Alta. L.R. (2d) 97; 12 C.H.R.R. D/417; 90 CLLC 17,025; 113 N.R. 161; Bhinder et al. v. Canadian National Railway Co. et al., [1985] 2 S.C.R. 561; (1985), 23 D.L.R. (4th) 481; 17 Admin. L.R. 111; 9 C.C.E.L. 135; 86 CLLC 17,003; 63 N.R. 185; Canadian Pacific Ltd. v. Canada (Canadian Human Rights Commission), [1988] 1 F.C. 209; (1987), 40 D.L.R. (4th) 586 (C.A.); Air Canada v. Carson, [1985] 1 F.C. 209; (1985), 18 D.L.R. (4th) 72; 6 C.H.R.R. D/2848; 57 N.R. 221 (C.A.); Canada (Attorney General) v. Rosin, [1991] 1 F.C. 391; (1990), 34 C.C.E.L. 179; 91 CLLC 17,011 (C.A.); Little v. Saint John Shipbuilding and Dry Dock Co. Ltd. (No.2) (1980), 41 N.B.R. (2d) 315; 1 C.H.R.R. D/1; 107 A.P.R. 315 (Bd. of Inq.); Galbraith v. Canada (Canadian Armed Forces) (1989), 10 C.H.R.R. D/6501; 89 CLLC 17,021 (Can. Trib.).

REFERRED TO:

Hodgson v. Greyhound Lines, Inc., 499 F. 2d 859 (7th Circ. 1974); Mahon v. Canadian Pacific Ltd. (1985), 7 C.H.R.R. D/3278 (Can. Trib.); Canada (Attorney General) v. Saint Thomas and Canadian Human Rights Commission (1993), 162 N.R. 228 (F.C.A.); Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279; (1988), 53 D.L.R. (4th) 609; 10 C.H.R.R. D/5515; 88 CLLC 17,031; Saskatchewan (Human Rights Commission) v. Saskatoon (City), [1989] 2 S.C.R. 1297; (1989), 65 D.L.R. (4th) 481; [1990] 1 W.W.R. 481; 81 Sask. R. 263; 11 C.H.R.R. D/204; 90 CLLC 17,001; 45 C.R.R. 363.

APPLICATION to set aside a Canadian Human Rights Tribunal’s dismissal of a complaint (Husband v. Canada (Armed Forces) (1991), 15 C.H.R.R. D/197; 91 CLLC 17,030 (Can. Trib.)) that the Canadian Armed Forces had discriminated against the mise en cause herein based on a visual disability. Application dismissed.

COUNSEL:

Peter C. Engelmann for applicant.

Joseph C. de Pencier and Major R. Smith for respondent.

APPEARANCE:

Julia Husband on her own behalf.

SOLICITORS:

Lynk, Engelmann, Gottheil, Ottawa, for applicant.

Deputy Attorney General of Canada for respondent.

MISE EN CAUSE ON HER OWN BEHALF:

Julia Husband, Winnipeg.

The following are the reasons for judgment rendered in English by

Isaac C.J.: I have had the privilege of reading in draft form the reasons for judgment which Mr. Justice Robertson has prepared in this section 28 [Federal Court Act, R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 8)] application. Because I disagree both with the disposition he proposes and, for the most part, with his analytical approach, I find it necessary to deliver separate reasons.

On this application, the applicant asks this Court to review and set aside the decision of a Canadian Human Rights Tribunal panel (the Tribunal) [(1991), 15 C.H.R.R. D/197]. By a (2:1) majority, the Tribunal dismissed a complaint by Julia Husband (the complainant) who had alleged that the Canadian Armed Forces (CAF) had discriminated against her by reason of her visual disability, contrary to sections 7 and 10 of the Canadian Human Rights Act, R.S.C., 1985, c. H-6, as amended (the Act).

The majority concluded that the CAF had established on a balance of probabilities that the visual acuity standard fixed for entry into the CAF did amount to discrimination based on disability; but that it was a bona fide occupational requirement (BFOR) within the meaning of paragraph 15(a) of the Act and was therefore not a discriminatory practice. The dissenting member reached the opposite conclusion.

The complainant appeared before us without counsel. When asked for submissions, she made none and said that she was content to adopt and rely on the submissions made by counsel for the applicant.

BACKGROUND

The complainant graduated with a degree of Bachelor of Music from the University of Brandon, Manitoba in 1981. Between the date of her graduation and the spring of 1986, she was variously employed as a music teacher, both privately and in the public school system, as a performing musician and in giving clinics in the public schools on a free-lance basis.

The complainant made initial contact with a recruiting officer of the CAF in 1981 and, thereafter, she sought, with moderate diligence, a position as a musician with the CAF. In the spring of 1986 she was advised that a direct entry position for a clarinet player would soon be available. A direct entry position is one in which the candidate fills a designated position. For such a position, candidates must possess an acknowledged skill and, if successful, are enrolled directly in a three-year music programme. Candidates are judged initially on their musical abilities and then, on recommendation, they are made a recruitment offer. Once recruited, they must, like all other recruits into the CAF, pass basic training. The majority noted that [at page D/199] “From her responses in cross-examination, it became clear that Ms. Husband had done very little research into the `military’ aspects of being a musician in the CAF, but rather had focussed on her musical aptitude.”

In the spring of 1986, the CAF tested the complainant to determine whether her musical skills were adequate for the position and found her qualified. The complainant was then referred to the Recruiting Centre to apply for entry into the CAF as a non-commissioned member. There, she was required to submit to medical examinations, including examinations for visual acuity, to determine her fitness for entry into the CAF as a regular member. These examinations determined that the complainant’s eyesight was too poor to meet the minimum entry standard for the CAF. The CAF therefore rejected her application for entry as a regular member. As a result, the complainant filed a complaint with the Canadian Human Rights Commission alleging that the CAF had discriminated against her because of her disability. That complaint in turn led to the establishment of the Tribunal whose decision is now the subject of review by this Court.

DECISION OF THE TRIBUNAL

The issue before the Tribunal, as stated in the majority reasons (at page D/198), was “whether certain provisions of the medical standards for entry into the Canadian Armed Forces … constitute[d] a bona fide occupational requirement within” the meaning of paragraph 15(a) of the Act. As I have already stated, the majority concluded that the entry level standard for visual acuity for prospective members to the CAF while constituting discrimination based on disability, is a bona fide occupational requirement and is therefore not a discriminatory practice within the Act. It found expressly that the minimum standard for visual acuity for entry into the CAF had met the objective test laid down in Ontario Human Rights Commission et al. v. Borough of Etobicoke, [1982] 1 S.C.R. 202, i.e., that the minimum standard was reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, her fellow employees and the general public. There was no dispute either before the Tribunal or before us that the CAF had met the subjective test propounded in Etobicoke.

The majority concluded, based on uncontroverted evidence, that the issue whether the visual acuity standard amounted to a BFOR fell to be assessed against the primary role that the complainant would be required to play as a regular member of the CAF (i.e. as a soldier). This is clear from the following passage of its reasons [at page D/209]:

Based on all the evidence, I am satisfied that the primary role of all regular members of the CAF is to protect the interests of Canada, Canadians and Canadian allies with physical force, if necessary. While other roles may be assumed by various members of the CAF when our country is not at war, the primary obligation and purpose of the CAF is to maintain that wartime preparedness. It is therefore my opinion that the defence of BFOR as it relates to the occupation which is the subject matter of this complaint, must be related to the military aspects of being a regular member of the Armed Forces as well as the occupation of being a musician in the CAF.

For his part, the dissenting member was of the view that the standard fell to be assessed against the complainant’s role as a musician. He articulated his position as follows [at page D/227]:

In my opinion, the BFOR in question here is based on historical attitudes and traditions embedded deeply in military thinking. It is not bona fide within the meaning of s. 15(a) of the Act because it bears no relationship to the true qualifications needed by musicians in the modern Canadian Armed Forces. In my view, the CAF does not realistically intend to require its musicians to perform the duties which are used to justify the occupational requirements in issue. There is simply no rational basis for requiring musicians to meet the occupational requirements upon which the CAF is relying to deny Ms. Husband employment in the CAF band.

…

In all, it is therefore my view that the imposition of the V4 standard to Ms. Husband, in the circumstances of the present case, is not reasonably necessary to ensure the efficient and economic performance of her duties as a musician.

ISSUES

The applicant raised the following two issues on the hearing of the application:

1. Did the Tribunal fail to observe a principle of natural justice or otherwise act beyond or refuse to exercise its jurisdiction when it relied on facts not before it at the hearing into this matter and failed to provide an opportunity to the applicant to respond to such findings?

2. Did the Tribunal err in law when it found that the CAF had met their onus and established that their minimum standard for uncorrected visual acuity was a bona fide occupational requirement?

ANALYSIS

A.  Did the Tribunal fail to observe a principle of natural justice or otherwise act beyond or refuse to exercise its jurisdiction when it relied on facts not before it at the hearing into this matter and failed to provide an opportunity to the applicants to respond to such findings?

On this issue I am in complete agreement with the conclusion of Mr. Justice Robertson and with the reasons which he gave. I would, therefore, answer this question in the negative.

B.  Did the Tribunal err in law when it found that the CAF had met their onus and established that their minimum standard for uncorrected visual acuity was a bona fide occupational requirement?

(i)         Soldier First

Before proceeding to consider the second issue, it would be useful to discuss the occupation against which the determination of that issue must be assessed. After considering the preponderance of uncontroverted evidence on the point, the majority concluded that the primary role or occupation was that of a soldier. It therefore assessed the entry standard in light of the evidence concerning the unique role assigned to that occupational group by the National Defence Act, R.S.C., 1985, c. N-5, sections 14, 31 [as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 60, Sch. I, s. 14], 33 [as am. idem, s. 15] and 34 [as am. idem] which provide, in substance, that any member of the CAF may be placed on active service by reason of emergency, for the defence of Canada and is at all times liable to perform any lawful duty.

The dissenting member concluded that the occupation against which the entry standard should be assessed was that of a musician. However, in my view, this conclusion was reached in the face of overwhelming evidence to the contrary.

The occupation to which the standard applied fell to be determined on the evidence given at the hearing before the Tribunal. The conclusion that the occupation was primarily that of a soldier was therefore one of fact. This conclusion was, as I have said, based on the preponderance of evidence and one which the majority was entitled to make. Barring legal error (and none was alleged or found), I find no warrant to approach the analysis of the second issue on any basis other than that the occupation into which the complainant was seeking entry and to which the standard applied was that of a soldier first and musician second.

(ii)        The Standard

The medical standard of visual acuity for entry into the CAF is V-1 to V-4 (Exhibit R-10, Case, Vol. VII, pages 1268-1285). A recruit will be rated V-4 if, on testing, refractive error does not exceed + or − 7.00 dioptres measured for each eye without the use of corrective lenses.

Major John Kearns, an ophthalmologist in the CAF, gave the following expert evidence in explaining the standard (Case, Vol. III, pages 413-415):

In order to determine an individual’s correct visual category, we need two sets of information. We need to know what their vision is in each eye without their glasses on or without correction and what their vision is in each eye with their optimal correction.

They have been divided into six categories. I explain them to people in fairly common terms in that a person with a V-1 vision, has perfectly normal vision as far as being able to read the chart is concerned and doesn’t require correction under normal circumstances to enhance his vision. They have normal vision.

V-2 is a[n] individual who has reasonable vision without their correction, such that they could probably meet the minimum driving standards should they not have their glasses with them, [b]ut with correction achieves normal vision.

The V-3 category, which is a rather broad category, actually are those individuals who don’t meet either V-1 or V-2 standards and who have rather poor unaided vision—uncorrected vision, but good corrected vision. But their unaided vision is to such a level that they are going to be restricted in carrying out many of the common military duties without their glasses on. They will not be able to drive a vehicle[,] they will not be able to accurately handle weapons without their glasses on.

Some (sic), it is a broad category. If we had a category for every level of vision, it would be too complicated a system. So at least these categories have had to be simplified. But it is a person who cannot function in the everyday sense without their glasses on, a V-3.

V-4 are those individuals who had—it actually encompasses two groups and that leads to some confusion. But for our purposes here, the aspect of V-4 that we are talking about are individuals whose uncorrected acuity does not meet the 20-400 standard so that we cannot accurately measure their level of vision and whose refractive error does not exceed plus or minus seven dioptres.

Now, the second group which is sort of caught in this V-4 trap is on a corrected side. You will notice that for the first time there is a difference between the better eye and the other eye with respect to corrected vision. So V-4 also traps people—or catches people who have good vision only in one eye for whatever reason, even with their correction. So they have one eye that has less than good vision, even when corrected.

Now, that is an either/or situation, you know, that there are people who have normal refractive errors, but because of their crossed eyes, a child had a lazy eye, their potential vision in one eye doesn’t meet this 6/120 vision, and they will be a V-4. But on the other hand, there are those who function, who cannot function without their glasses on who also because of the inability to read the 20/400 letter and the refractive error are also classified as V-4. So there are two groups within that, and they may or may not be related.

The V-5 category is reserved for certain Members who cannot qualify for one of the higher categories, but who in the opinion of an ophthalmologist can still perform their duties satisfactorily with the vision that they have.

V-6 is category that is assigned to applicants to the Armed Forces who do not meet the V-4 standard or to serving Members whose level of vision has fallen below a level that we think is—with their ability to perform their military tasks. Neither V-5 nor V-6 can be assigned without the individual having been seen by an ophthalmologist.

This evidence was not controverted.

When she was examined by an ophthalmologist, the complainant was rated as V-6 and found “unfit”. (Exhibit R-13, Case, Vol. VIII, at pages 1293-1294.)

In cross-examination, the complainant admitted that in order to read music she wore contact lenses or glasses, that it was a condition of her driver’s licence that she wear corrective lenses and that except for sleeping and sitting and listening to music, she usually wore corrective lenses.

(iii)       The Test for Determining Whether the Standard was a BFOR

The applicant’s complaint on the second issue is twofold. First, it complains that the majority of the Tribunal erred in law by applying the wrong test to determine the risk of employee failure. In support of this complaint it was said that the Tribunal erred when it failed to apply the test propounded in Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489 (Dairy Pool) which it was said had effectively overruled the earlier decision of the Supreme Court of Canada in Bhinder et al. v. Canadian National Railway Co. et al., [1985] 2 S.C.R. 561 (Bhinder) and the decision of this Court in Canadian Pacific Ltd. v. Canada (Canadian Human Rights Commission), [1988] 1 F.C. 209 (C.A.) (Mahon). Secondly, it was contended that the Tribunal erred in denying the complainant the opportunity to undergo basic training.

In deciding the validity of these complaints it would be useful to recall the clues given by McIntyre J. as to the manner in which a justifiable BFOR should be ascertained and how sufficiency of risk of employee failure should be decided. In Etobicoke, after defining a BFOR and saying what an employer must show in order to come within the definition, he stated at page 209:

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.

At page 212, he also stated:

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 [Tribunal], subject always to the rights of appeal … must be the judge of such matters. [Emphasis added.]

Based on these passages, I conclude that, subject to what I will say later concerning whether Dairy Pool has effectively overruled Bhinder and Mahon, the applicant’s complaint about the conclusion of the majority as to “sufficiency of risk” of employee failure amounts to an attack on its findings of fact. On this point, I am in respectful agreement with Pratte J.A. (for himself and Hugessen J.A.) when he said in Mahon, at page 217:

In the present case, as in the Etobicoke case, the subjective element of the requirement in question did not raise any difficulty. The only question to be resolved was whether the evidence adduced justified the conclusion that there was “a sufficient risk of employee failure” among insulin dependent trackmen to warrant the refusal of Canadian Pacific Limited to hire them. That question was a question of fact. The applicant is, therefore, attacking what is in essence a finding of fact. Such a finding is not normally reviewable under section 28 of the Federal Court Act. In order to succeed, the applicant must, therefore, either show that the Tribunal erred in law or that it based its decision on an erroneous finding of fact made in the manner described in paragraph 28(1)(c) of the Federal Court Act. The applicant cannot ask the Court to review the evidence and substitute its opinion for that of the Tribunal on the question it determined. For that reason, the last attack made by the applicant against the decision of the Tribunal need not be considered. Whether or not the evidence disclosed that there was a substantial risk involved in employing insulin dependent diabetics as trackmen was a question of fact that the Tribunal had to determine and that this Court does not have the power to decide. [Emphasis added.]

I will deal with each complaint in turn; but it would be helpful to examine the reasons of the majority to ascertain how it approached each of them and the conclusions which it reached.

In its reasons, the majority stated the issue; reviewed the evidence; canvassed the “relevant” law, including the provisions of the Act which bear on the issue; discussed the application of the law to the case and concluded that the CAF had demonstrated on a balance of probabilities that the visual acuity standard in issue was a BFOR.

The majority commenced its review of the “case law” by quoting from Etobicoke [at pages 208-210], passages which deal with the definition of bona fide occupational requirement and with the evidence that an employer must lead in order to justify a BFOR in the interest of public safety. I reproduce both passages [at pages D/202-D/203]:

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 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 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.

…

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 a 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 then referred to the following passages from the reasons in Mahon where Marceau J.A. [at page 224] and Pratte J.A. [at page 221] stated their understanding of the phrase “sufficient risk of employee failure” as found in the second passage from Etobicoke that I have just quoted:

When I read the phrase in context, however, I understand it as being related to the evidence which must be sufficient to show that the risk is real and not based on mere speculation. In other words, the “sufficiency” contemplated refers to the reality of the risk and not its degree.

 … a job-related requirement that, according to the evidence, is reasonably necessary to eliminate a real risk of a serious damage to the public at large must be said to be a bona fide occupational requirement.

After summarizing the applicable legal principles, the majority proceeded to apply them to the facts of the case.

It reviewed the evidence that bore on the issue whether the occupation was that of soldier or musician and, as I have said, it concluded that it was soldier first.

It then reviewed the evidence concerning the functional limitations placed on a person in the military who, like the complainant, had a refractive error exceeding − 7.00 dioptres. The majority accepted the evidence of Major Kearns and Dr. Ben Wilkinson who, although not a member of the CAF, was qualified as an expert in the field of occupational ophthalmology, that such a person would be classified as V-6 and be refused entry into the CAF. It noted particularly the following portions of the evidence of Dr. Wilkinson [at pages D/211-D/212]:

Now, this vision is worse than the legally blind 20/200, 6/60 line. In my opinion it—the kinds of level of vision that she would certainly be able to make out significant changes in colour, light and dark such as the direction of windows, movement would be easier to detect than detail. This is something that we are not terribly aware of. But, for instance, if somebody stood very still twenty feet away, she could well not realize that somebody is there. If they move, she would immediately know that there was somebody there.

Identifying who somebody is would probably be possible at about two or three feet. And for those reasons, I would say that she would certainly be unable to use a weapon. (Evidence, Vol. 4., p. 527, 528)

She would probably have trouble finding the glasses even if she dropped them, not on the floor, but if she was in the bush or in the water or something, it would be hard to find. Finding a contact lens would be quite difficult. So my conclusion was that looking at the information that I was given about the kinds of activities that she would be expected to carry out, that with her glasses on she would be able to carry these out. If on the other hand she lost her glasses, it would be disastrous. (Evidence, Vol. 4, p. 529)

And I came to the conclusion that there were basically three levels of ability with someone who loses their glasses.

The first is the ability to carry out most activities, despite the fact that you have lost your glasses, though there may be some restrictions of a few. Then there is an area where the individual is left with a vision somewhere between 20/40 and 20/200, where gradually they are less able to carry on their job, but are still able to look after themselves.

I would say that if somebody was left with 20/200, they would not really want to be able to continue with that job, but they could get themselves out of it. Whereas if the vision is poorer than 20/200, they’re getting into a level where they can’t tell which direction they are going in. So another officer has to be taken out of the group to get them back out of the way. So that is more costly to the unit because it has occupied two people rather than one person.

So you have got three stages. There is a stage where the individual is able to continue being productive. Then you have the stage where the person is not productive, but is able to look after themselves. And finally you have the stage where they are not only not productive and unable to look after themselves, but become a liability. Somebody has got to get them out of the situation. (Evidence, Vol. 4, p. 532-533)

People with bad vision are often quite unaware of the clues they are missing.—in a situation of danger, in a fire or entering an enemy occupied territory or anything like that, you will need to use all sorts of little clues, movement, subtle differences and colour. In those situations are impossible to quantify, but obviously the better your vision, the more effectively you can carry those out and the more safely. (Evidence, Vol. 4, p. 574)

Based on this and other evidence, the majority concluded, first, that it is necessary for the CAF to have a minimum standard for visual acuity for entry as a regular member and secondly, that such standard was reasonable and necessary to assure the efficient and economical performance of the job without endangering the employee, her fellow employees and the general public. In other words, it concluded that the standard had met the objective test propounded in Etobicoke.

The majority acknowledged that with corrective lenses the complainants’ vision was good—20/30(R) and 20/25(L). It considered whether there was a risk of the complainant losing her corrective lenses or being required to remove or take off her corrective lenses or to stop her activities to clear or otherwise adjust the lenses and whether that risk was significant enough to require the CAF to set the enrolment standard for visual acuity in relation to the uncorrected standard of visual acuity rather than the corrected standard. After reviewing the evidence of Major Kearns and Dr. Wilkinson concerning the risks associated with corrective lenses, if used in the military (see, pages D/213-D/215) and the evidence of Captain Veilleux concerning the rigours of basic training camp, the possibility that some of the activities could cause risk of loss of corrective lenses and how reasonable eyesight is required in order to function in the military environment, the majority concluded [at pages D/215-D/216]:

I am satisfied that the types of activities which must be performed by members of the military carry with them a reasonable risk of the loss, breakage or other problems associated with the use of corrective lenses such that it is reasonable and necessary to set an enrolment standard for visual acuity related to uncorrected vision.

The majority then concluded that the CAF had met both the subjective (at page D/219) and objective (at page D/220) tests in Etobicoke.

With respect to the objective test the majority stated [at pages D/219-D/220]:

The major issue in this case related to whether the existing medical standards related to visual acuity for entry to the CAF also met the “objective test” set out in Etobicoke, supra. In considering all of the evidence, I have spent many hours reading and rereading the four volumes of evidence, the several volumes of exhibits and the precedent cases to understand the role and purpose of the Armed Forces, the expectations of recruits, the occupational and military duties of a musician and how they fit into the CAF. After careful consideration, I have come to the following conclusions:

1. An uncorrected visual acuity standard for entry to the CAF is necessary.

2. There would be increased risk to the individual member and his/her co-workers and the public without that standard.

3. There is a clear connection between the standard of uncorrected visual acuity imposed by the CAF and the ability of the recruit to look after himself in the performance of his/her job without undue risk to himself, his/her co-workers and the public.

4. The standard of uncorrected visual acuity selected for entry to the CAF is reasonable.

I therefore also find the minimum standard for visual acuity for entry to the CAF is reasonably necessary to ensure the efficient and economical performance of the job without endangering the employee, his fellow employees or the general public—i.e. they have also met the “objective test” set out in Etobicoke, supra.

These were conclusions of fact based upon the evidence and, to use the language of McIntyre J. in Etobicoke, they were conclusions of fact the majority was entitled to make, “in the final analysis”. It is abundantly plain to me that in concluding that the standard was a BFOR, the majority had applied the test propounded in Etobicoke. In my view, unless it could be said that Dairy Pool has overruled Bhinder and Mahon, and that the majority has failed to apply the “new” standard said to be propounded in Dairy Pool, the applicant’s first complaint must fail.

As a starting point for analysis of the issue whether Dairy Pool has overruled Bhinder and Mahon, I recall the objective test propounded by McIntyre J. in Etobicoke. For ease of reference, I repeat here what he said at page 208, after stating the subjective test:

In addition it [BFOR] 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. [Emphasis added.]

Later, at pages 209-210, he outlined the nature of the evidence that an employer must lead and a tribunal or a court must find where justification of a BFOR is based on public safety:

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 [Emphasis added.]

At issue in Bhinder was whether a rule which required all employees of the Canadian National Railway Company to wear a hard hat at a particular work site was a BFOR. Writing for the majority, McIntyre J. stated that the Etobicoke test was applicable and had been met. At pages 587-588 he stated:

The appellant has established a prima facie case of discrimination. The onus therefore has passed to the respondent to show that the hard hat rule is a bona fide occupational requirement. From a reading of the reasons for decision of the Tribunal it appears that the test was met. Specifically, the Tribunal found that the hard hat rule was not a bona fide occupational requirement as far as it related to Bhinder and, in consequence, to other Sikhs. In this, they were accepting the appellant’s individual case approach. It is, however, clear from the reasons and the references made by the Tribunal to the evidence that it was of the view that, as far as the rule applied to non-Sikhs, it was a bona fide occupational requirement. It was agreed that CN adopted the rule for genuine business reasons with no intent to offend the principles of the Act. The Tribunal found that the rule was useful, that it was reasonable in that it promoted safety by reducing the risk of injury and, specifically, that the risk faced by Bhinder in wearing a turban rather than a hard hat was increased, though by a very small amount. The only conclusion that can be drawn from the reasons for decision is that, but for its special application to Bhinder, the hard hat rule was found to be a bona fide occupational requirement. Indeed, it would be difficult on the facts to reach any other conclusion.

In that case, the Tribunal had found as a fact that (at page 584) “Bhinder, if exempted from the rule, would face a greater likelihood of injury—though only slightly greater—than if he complied.”

In Mahon, the issue before the Canadian Human Rights Commission was whether a requirement that a railway trackman should not be an insulin dependent diabetic was a bona fide occupational requirement within the meaning of paragraph 14(a) [Canadian Human Rights Act, S.C. 1976-77, c. 33, s. 14(a) (as am. by S.C. 1980-81-82-83, c. 143, s. 7)] (now paragraph 15(a)) of the Act. Based on Etobicoke, the Tribunal concluded that the requirement was not a BFOR on the ground that, although the refusal to employ unstable diabetics might be justified, nevertheless the risks involved in employing a stable diabetic like Mr. Mahon were not sufficiently great to warrant the refusal of Canadian Pacific Limited to employ him.

On a section 28 application to this Court, Canadian Pacific Limited alleged that the Tribunal had applied the wrong standard when it held or assumed that a bona fide occupational requirement relating to safety had to increase safety by a substantial amount.

The dispositive reasons of Pratte J.A. at pages 221-222 are as follows:

Once it had been found that the applicant’s policy not to employ insulin dependent diabetics as trackmen was reasonably necessary to eliminate a real risk of serious damage for the applicant, its employees and the public, there was only one decision that the Tribunal could legally make, namely, that the applicant’s refusal to engage the respondent Wayne Mahon was based on a bona fide occupational requirement and, as a consequence, was not a discriminatory practice.

This conclusion, he observed, followed from the conjoint effect of Etobicoke and Bhinder.

Marceau J.A. wrote separate concurring reasons. He stated why he found the decision objectionable, in these terms [at pages 222-223]:

The Tribunal had found, on the evidence, that “C.P.R.’s railway operation is more likely to be safer if insulin dependent diabetics are not hired as track men”; The Tribunal, however, saw this as only the starting point and went on to try to evaluate how much safer the operation would actually be, so as to ascertain whether the risk to safety was “sufficiently” increased to justify the policy of refusing to hire diabetics like Mr. Mahon for trackman positions.

This, he found, to be an attempt to balance the greater risk to the public against the advantages diabetics could derive from being given the same opportunity as non-diabetics. In his view, the Tribunal was attributing to [then] paragraph 14(a) of the Act a scope and intent that it did not have. He reached this conclusion after reviewing the reasons of McIntyre J. in Etobicoke and in Bhinder.

His dispositive reasons, found at page 226, are as follows:

The Bhinder decision, as I read it, makes it clear that the proper approach to verify whether an occupational requirement, adopted in good faith for the sake of safety, meets the objective test of paragraph 14(a) as it was set out in the Etobicoke decision is to look into the duties to be performed and the conditions demanded for their proper performance (in the present case that of a trackman) and then compare those requirements against the capabilities and limitations of the class of persons affected (here insulin dependent diabetics as a group). The Tribunal here, on the basis of the evidence, found, in a first step, that the trackman position required “certain physical attributes” the diminution of which, in the work environment, might “put an employee, co-workers, and the general public at greater risk in terms of safety”. It found, in a second step, that insulin dependent diabetics, even stable diabetics like Mr. Mahon, could suffer such a diminution of their physical (and mental) capacities, a possibility which was “real … and not farfetched or fanciful” (pages 103-104 of the decision). These two findings were, it seems to me, decisive: it was then an unavoidable conclusion that the policy not to hire insulin dependent diabetics was based on a bona fide occupational requirement. In going further and assessing Mr. Mahon’s own personal physical attributes to determine that notwithstanding his being an insulin dependent diabetic his limitations, although real, were under sufficient control, the Tribunal, in my view, misapplied paragraph 14(a) of the Act.

Like Pratte J.A., he set aside the decision and remitted the case to the Tribunal for reconsideration in light of its findings.

I do not read Mahon as propounding any new test for determining whether the policy at issue in that case was a BFOR. On the contrary, in my respectful view Mahon accepts the test propounded in Etobicoke (and applied in Bhinder) and applied it to the facts of that case.

It is true that, in the course of his reasons Marceau J.A. stated [at page 224]:

When I read the phrase in context, however, I understand it as being related to the evidence which must be sufficient to show that the risk is real and not based on mere speculation. In other words, the “sufficiency” contemplated refers to the reality of the risk not its degree.

The last sentence in this quotation is infelicitous, since “sufficiency” does connote degree. However, in my view, that sentence does not have the effect of nullifying the decision in Mahon for two reasons. First, the majority of the panel in that case did not share the view of Marceau J.A. and, secondly, the sentence does not appear to have had any influence on his dispositive reasons.

I come now to Dairy Pool for which so much has been claimed. At issue in that case was whether a particular employment rule imposed by an employer on an employee was a bona fide occupational qualification (BFOQ) under the Individual’s Rights Protection Act, R.S.A., 1980, c. I-2, and if not, whether the employer could defend itself against a charge of religious discrimination by proving that it had accommodated the employee up to the point of undue hardship.

The Court concluded that the rule was not a BFOQ and that the employer had not discharged the burden of showing that it had accommodated the employee up to the point of undue hardship.

Wilson J. delivered the reasons of the majority. In the course of her reasons, she examined earlier decisions of the Court dealing with the concept of BFOR and BFOQ (which she said were “equivalent and co-extensive terms”), including Bhinder because, in her view “they may not be completely compatible.” She stated that in order to appreciate fully the implications of Bhinder, it was necessary to review in some detail the ruling of the Tribunal as well as the majority and dissenting judgments in that case.

At page 508, she listed the salient facts found by the Tribunal in Bhinder:

The salient facts found by the Tribunal in Bhinder were as follows:

(1) The hard hat rule was useful and reasonable in that it promoted safety by reducing the risk of injury to the employee.

(2) The rule was adopted by the employer for genuine business reasons and with no intent to offend the principles of the Canadian Human Rights Act.

(3) Mr. Bhinder was able to perform his job effectively and efficiently without wearing a hard hat.

(4) The risk of injury to Mr. Bhinder if he did not wear a hard hat was negligible.

(5) The risk of injury to co-workers and the general public if Mr. Bhinder did not wear a hard hat was nil.

(6) The employer’s safety policy would not be jeopardized by giving Mr. Bhinder an exemption.

(7) The financial hardship that would be caused the employer in exempting Mr. Bhinder from the hard hat rule was de minimis.

At pages 512-513, she stated:

It seems to me in retrospect that the majority of this Court may indeed have erred in concluding that the hard hat rule was a BFOR. I say that not because I disagree with the test set out in Etobicoke nor because I accept the proposition advanced by those in dissent that accommodation is a necessary component of a BFOR, but for two other reasons.

First, the rule was not, to use the terminology of Etobicoke, “reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public”. The Tribunal found as a fact that the failure of Mr. Bhinder to wear a hard hat would not affect his ability to work as a maintenance electrician or pose any threat to the safety of his co-workers or to the public at large. The Tribunal did find that not wearing a hard hat would increase the risk to Mr. Bhinder himself, but only marginally. In light of the findings of fact by the Tribunal, I think it is difficult to support the conclusion of the majority of the Court that the hard hat rule was reasonably necessary for the safety of Mr. Bhinder, his fellow employees and the general public. [Emphasis added.]

Based on the latter passage, the applicant contends that Bhinder has effectively been overruled in its conclusion that a marginal risk was enough to satisfy the test for determining the “sufficient risk of employee failure” as propounded in Etobicoke and that Dairy Pool lays down a new test of “substantial risk”. For the reasons that follow, I disagree.

First, the passage upon which the applicant relies was not necessary for the decision in Dairy Pool. In any case, the most that can be claimed for it, in my view, is that the majority in Bhinder has misapplied the Etobicoke test, given the findings by the Tribunal that Bhinder’s failure to wear a hard hat posed no risk of injury to his co-workers and the public; posed only a negligible risk of injury to himself and, Bhinder’s exemption from the hard hat policy would not jeopardize the employer’s safety policy. Secondly, at pages 516-517, Wilson J. summarizes the results of her examination of Bhinder as follows:

For these reasons, I am of the view that Bhinder is correct in so far as it states that accommodation is not a component of the BFOR test and that once a BFOR is proven the employer has no duty to accommodate. It is incorrect, however, in so far as it applied that principle to a case of adverse effect discrimination. The end result is that where a rule discriminates directly it can only be justified by a statutory equivalent of a BFOQ, i.e., a defence that considers the rule in its totality. (I note in passing that all human rights codes in Canada contain some form of BFOQ provision.) However, where a rule has an adverse discriminatory effect, the appropriate response is to uphold the rule in its general application and consider whether the employer could have accommodated the employee adversely affected without undue hardship.

If the applicant’s claim had any validity, one would have expected to find in this summary some reference to the fact that Bhinder was also in error in adopting the test for “sufficient risk” that it did. Indeed, in the passage that I quoted earlier, Wilson J. stated expressly that she did not disagree with the test set out in Etobicoke. Her disagreement on this point, as I apprehend it, is limited only to its application by the majority in that case.

Finally, the impact of a rule requiring a showing of “substantial risk” on the standard of proof laid down in Etobicoke should not be overlooked. In my respectful view, the substitution of “substantial” for “sufficient” might well have the effect of requiring an employer to justify a BFOR in the interest of public safety by a higher degree of probability than is implied in the test laid down in Etobicoke.

I conclude by summarizing:

1. Neither Bhinder nor Mahon propounded any new test for determining “sufficient risk” in public safety cases;

2. The test applied in each case was that propounded in Etobicoke, which remains unchallenged and unimpaired;

3. Dairy Pool has not effectively overruled either Bhinder or Mahon in so far as they can be said to have propounded a test for sufficient risk;

4. Dairy Pool has not laid down any new test of “substantial risk” in substitution for the test of “sufficient risk” propounded in Etobicoke.

For the foregoing reasons I am of the view that the majority did not err in failing to apply the test of “substantial risk”, said to be laid down in Dairy Pool.

I should not wish to leave this discussion without saying a brief word about Air Canada v. Carson, [1985] 1 F.C. 209 (C.A.) and Canada (Attorney General) v. Rosin, [1991] 1 F.C. 391 (C.A.), to which Mr. Justice Robertson has referred in his reasons.

As regards Carson, I am in respectful agreement with MacGuigan J.A. that [at page 232]:

An examination of the cases cited by McIntyre J. thus makes it clear that he did not intend by his reference [to two cases cited at the end of his judgment] to give approval to a particular measure of risk.

I am, however, unable to agree that [at page 232]:

 … 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”.

First, in my respectful view, the substitution of the adjective “acceptable” for “sufficient” does nothing to render the test more precise. Secondly, it is equally arguable, in my respectful view, that in calling attention to Hodgson v. Greyhound Lines, Inc., 499 F. 2d 859 (7th Circ. 1974); and Little v. Saint John Shipbuilding and Dry Dock Co. Ltd. (No.2) (1980), 41 N.B.R. (2d) 315 (Bd. of Inq.), McIntyre J. might simply have been stating that he had considered and rejected the test laid down in each and had developed a different test, namely that of “sufficient risk”.

As regards Rosin, it is sufficient to say that I find nothing in the obiter dictum of Linden J.A., at page 411, to warrant a conclusion that this Court had “embrace[d]” a test of sufficiency that is in any way different from that laid down in Etobicoke. The statement was not necessary for the decision and there was no detailed examination of either Bhinder or Dairy Pool.

I come, finally, to the applicant’s second complaint, namely, that the CAF failed to give the complainant an opportunity to undertake basic training in order to determine whether she was fit to become a regular member.

Since this is a case of direct discrimination, the question of individual characteristics were irrelevant as justification for the standard: Dairy Pool, at page 517; Rosin, at page 411. Nevertheless, the majority did consider the issue (at pages D/217-D/219). The majority noted that the complainant had been individually tested for her disability and that her uncorrected eyesight was determined to be below the acceptable standard. Indeed, the majority found that, as a result of the testing, the complainant had been placed in the category of the “legally blind”. It then considered the issue of her ability to function in a military or music environment without corrective lenses and concluded that she needed corrective lenses to function in both. It observed that the question whether or not the complainant loses her corrective lense in a particular situation was more a matter of chance than ability and therefore not a matter that could be tested effectively.

The majority also considered whether basic training of recruits could be a substitute for emergency or wartime situations and concluded that it could not.

As a result, it concluded its examination of this issue as follows [at page D/217]:

I am therefore satisfied that having the complainant complete basic training as a “testing procedure” would not be an effective method of testing to see whether her particular disability affects her ability to perform the military occupation efficiently and economically without endangering herself, her fellow employees and the general public.

Like Mr. Justice Robertson, I find no reviewable error in the conclusion of the majority which was based on the evidence before it.

For the foregoing reasons, I would answer the second question in the negative and would dismiss the application.

McDonald J.A.: I agree.

* * *

The following are the reasons for judgment rendered in English by

Robertson J.A. (dissenting): This application for judicial review seeks to set aside a decision of the Canadian Human Rights Tribunal (the Tribunal), convened under the Canadian Human Rights Act, R.S.C., 1985, c. H-6, as amended (the Act). A majority of the Tribunal concluded that the Canadian Armed Forces (the CAF) had not discriminated against the complainant, Julia Husband, when it declined her application for membership on the basis of a visual disability. The complainant, who was unrepresented by counsel, expressly adopted the submissions of the applicant, the Canadian Human Rights Commission (the Commission).

I

The complainant is an experienced and talented musician who in 1981 became interested in pursuing a musical career within the CAF. In April of 1986, a direct entry position for a clarinet player became available. Although the complainant satisfied the position’s professional requirements, her eyesight does not meet the minimum uncorrected standard prescribed for regular non-commissioned CAF recruits. With corrective lenses, the complainant’s vision approaches the 20/20 norm. Without correction, she is legally blind.

The CAF classifies uncorrected visual acuity on a declining scale from V-1 to V-6. Persons in the V-1 category approximate “normal” vision while persons in the V-6 category test at levels below legal blindness. Only persons who are classified at levels between V-1 and V-4 are admitted into the CAF. The V-5 category is reserved for CAF members whose vision has deteriorated below the V-4 standard since enlistment. The purpose of this category is to accommodate serving military personnel whose uncorrected eyesight is no better than that of the complainant. The CAF’s Career Medical Review Board retains these CAF members on the basis of “merit.” Serving members are understood to have acquired sufficient expertise and experience to continue performing their military duties satisfactorily. The complainant was placed in the V-6 category and denied admission into the CAF on that basis.

The complainant filed a complaint with the Commission on September 1, 1987, alleging that the CAF had discriminated against her on the basis of a disability in violation of sections 7 and 10 of the Act. The CAF conceded that its visual acuity standard is prima facie discriminatory but sought refuge in section 15 of the Act. That provision enables the CAF to demonstrate that its entry level visual acuity standard is a bona fide occupational requirement (BFOR) and therefore not discriminatory. In a decision rendered August 2, 1991, a majority of the Tribunal agreed that the CAF’s uncorrected visual acuity standard is a BFOR and dismissed the complaint.

The Tribunal referred to the test set out by the Supreme Court in Ontario Human Rights Commission et al. v. Borough of Etobicoke, [1982] 1 S.C.R. 202, and concluded that persons in the V-6 category pose a sufficient risk of employee failure to warrant their exclusion from the CAF. Tracking the language of this Court’s decision in Canadian Pacific Ltd. v. Canada (Canadian Human Rights Commission), [1988] 1 F.C. 209 (C.A.) [hereinafter referred to as Mahon], it defined “sufficient risk of failure” as follows [at page D/204]:

[T]he risk of failure is real and not based on mere speculation. “Sufficiency” relates to the reality of the risk and not its degree.

In deciding that the CAF’s entry level visual acuity standard is a BFOR, the Tribunal discussed the nature of the occupation sought by the complainant. In this regard, it referred to the doctrine of unlimited liability, which is more commonly referred to as the “soldier first” policy. That policy provides that regular members of the CAF are liable to go anywhere and to perform any lawful duties required by the CAF. The statutory basis of this doctrine is found in subsections 33(1) and 34(1) of the National Defence Act, R.S.C., 1985, c. N-5:

33. (1) The regular force, all units and other elements thereof and all officers and non-commissioned members thereof are at all times liable to perform any lawful duty.

…

34. (1) Where the Governor in Council has declared that a disaster exists or is imminent that is, or is likely to be, so serious as to be of national concern, the regular force or any unit or other element thereof or any officer or non-commissioned member thereof is liable to perform those services in respect of the disaster, existing or imminent, as the Minister may authorize, and the performance of those services shall be deemed to be military duty.

The Tribunal recognized that employment in the CAF is normally bifurcated in nature. There is always a military aspect to regular membership but most members pursue civilian occupations (musician, cook, lawyer) as well. Thus “the functions of the musician trade” specifically include military defence duties. Although it was acknowledged that a member of the CAF might spend an entire career without involvement in a military crisis (Tribunal’s reasons, at pages D/204-D/209), the Tribunal concluded that the CAF’s military role is a critical one (at page D/209):

Based on all of the evidence, I am satisfied that the primary role of all regular members of the CAF is to protect the interests of Canada, Canadians and Canadian allies with physical force, if necessary. While other roles may be assumed by various members of the CAF when our country is not at war, the primary obligation and purpose of the CAF is to maintain that wartime preparedness. It is therefore my opinion that the defence of BFOR as it relates to the occupation which is the subject matter of this complaint, must be related to the military aspects of being a regular member of the Armed Forces as well as the occupation of being a musician in the CAF.

On this point, the opinion of the dissenting member of the Tribunal was expressed in unequivocal terms. He reasoned that the majority’s position applied to the CAF as it was meant to exist rather than as it exists (dissenting reasons, at page D/227):

In my opinion, the BFOR in question here is based on historical attitudes and traditions embedded deeply in military thinking. It is not bona fide within the meaning of s. 15(a) of the Act because it bears no relationship to the true qualifications needed by musicians in the modern Canadian Armed Forces. In my view, the CAF does not realistically intend to require its musicians to perform the duties which are used to justify the occupational requirements in issue. There is simply no rational basis for requiring musicians to meet the occupational requirements upon which the CAF is relying to deny Ms. Husband employment in the CAF band.

It is apparent that the majority’s characterization of the job sought by the complainant directed its legal analysis. In other words, it applied the BFOR test to the complainant qua soldier who happened to be seeking employment as a musician. The majority’s adoption of the “soldier first” policy is particularly evident in its assessment of the reasonableness of the CAF’s visual acuity requirements.

The substance of the evidence before the Tribunal was that CAF members risk being placed in situations where corrective lenses may become dislodged or be unavailable. It also reflected on the risk of contact lenses proving to be an inadequate substitute for conventional eyewear. The Tribunal concluded that persons in the V-6 category pose an unacceptable risk to themselves and others in wartime or emergency situations. It also determined that the CAF was under no obligation to allow the complainant to be individually tested by permitting her to undergo basic training. Finally, it rejected the argument that, because the CAF permits waiver of common enrollment standards, all such standards should be abolished. No evidence was adduced as to the circumstances in which waivers have been granted to recruits in the past. The parties did not pursue this legal avenue before us.

II

The Commission’s first objection is that the Tribunal breached the rules of natural justice. Its second and principal argument is that the CAF’s uncorrected visual acuity standard is not a BFOR. On this point two substantive arguments are advanced. First, the Commission maintains that the Tribunal erred in law by applying the wrong standard for determining the legally acceptable risk of employee failure. This issue brings into question the validity of the “soldier first” policy and its impact on risk assessment. Second, the Commission argues that the Tribunal erred in denying the complainant the opportunity to undergo basic training. It submits that this form of “individual testing” would allay the CAF’s concern that the complainant’s vision would impair her military performance.

(a)       Natural Justice

The Commission raised a preliminary objection that the Tribunal breached the rules of natural justice by taking judicial notice of post-hearing events without giving it the opportunity to respond. For example, the Tribunal discussed the CAF’s modern role with reference to the Persian Gulf war and the civil events at Kahnawake and Kahnisatake. I agree with counsel for the CAF that there was ample uncontroverted evidence before the Tribunal to support the majority’s findings even without the impugned references.

(b)       Sufficiency of Risk—Proper Standard

A two-part test for evaluating the validity of BFORs was established in the Supreme Court decision of Etobicoke, supra, by McIntyre J. We are concerned only with the objective component of the Etobicoke test which requires that the BFOR be “reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public” (Etobicoke, at page 208). A BFOR will be established if there is a “sufficient risk of employee failure” to warrant the retention of an otherwise discriminatory employment qualification (Etobicoke, at page 210). Thus, whether or not an occupational requirement is “reasonably necessary” is dependent, at least in part, on whether members of the group alleging discrimination pose a sufficient risk of harm to themselves or others in the event of employee failure. The obviously problematic determination is the degree of risk which presents a “sufficient risk of employee failure” to justify upholding an otherwise discriminatory rule.

This Court and the Supreme Court have always been in agreement that at least some increase in risk of harm is necessary to establish a BFOR. Nonetheless, there have been divergent approaches to the quantification of the risk: see Air Canada v. Carson, [1985] 1 F.C. 209 (C.A.); Bhinder et al. v. Canadian National Railway Co. et al., [1985] 2 S.C.R. 561; Mahon, supra; Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489; and Canada (Attorney General) v. Rosin, [1991] 1 F.C. 391 (C.A.). The Commission argues that the Tribunal erred in applying Mahon as that decision was effectively overruled by the Supreme Court in Dairy Pool.

The early jurisprudence indicated that “a greater likelihood of injury—though only slightly greater” was sufficient to constitute a BFOR (Bhinder, at page 584). In Mahon [at pages 221 and 224], this Court interpreted the combined effect of Bhinder and Etobicoke as follows:

The effect of those decisions, in my view, is that, a fortiori, a job-related requirement that, according to the evidence, is reasonably necessary to eliminate a real risk of a serious damage to the public at large must be said to be a bona fide occupational requirement.

…

When I read the phrase [sufficient risk of employee failure] in context, however, I understand it as being related to the evidence which must be sufficient to show that the risk is real and not based on mere speculation. In other words, the “sufficiency” contemplated refers to the reality of the risk not its degree.

It has always been arguable that Etobicoke did not establish a “minimal” standard with respect to the increase of risk necessary to found a BFOR. In Carson, supra, MacGuigan J.A. interpreted the Etobicoke test with reference to the New Brunswick Board of Inquiry’s ruling in Little v. Saint John Shipbuilding and Dry Dock Co. Ltd. (No.2) (1980), 41 N.B.R. (2d) 315. In Little, which was cited by the Supreme Court in Etobicoke, the Board considered the mandatory retirement age of a bridge crane operator. In deciding to reinstate the complainant subject to medical testing, it stated, at page 337:

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 realities that exist. As long as these risks to public safety do not exceed a minimally acceptable standard the abolition of mandatory retirement age would not appear to create undue problems.

In Carson, MacGuigan J.A. seized upon the difference between “a minimal increase in risk of harm” and “a minimally acceptable risk of harm” on the ground that “the latter implies a measure of acceptability of risk that the former does not” (at page 231). At page 232, he continued:

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 certain degree of risk that sits better with the notion of “acceptable” than with that of “minimal”.

It seems that, prior to Bhinder, this Court was not prepared to accept that a minimal or marginal increase in risk of harm justified a BFOR. The validity of the “minimal” standard articulated in Bhinder was expressly doubted by Wilson J., albeit in obiter dictum, in Dairy Pool, supra, at pages 512-513:

First, the rule was not, to use the terminology of Etobicoke, “reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public”. The Tribunal found as a fact that the failure of Mr. Bhinder to wear a hard hat would not affect his ability to work as a maintenance electrician or pose any threat to the safety of his co-workers or to the public at large. The Tribunal did find that not wearing a hard hat would increase the risk to Mr. Bhinder himself, but only marginally. In light of the findings of fact by the Tribunal, I think it is difficult to support the conclusion of the majority of the Court [in Bhinder] that the hard hat rule was reasonably necessary for the safety of Mr. Bhinder, his fellow employees and the general public.

The Dairy Pool approach has been embraced by this Court, albeit in obiter dictum. In Rosin, supra, Linden J.A. remarked, at page 411:

A second complaint of the applicant is, that if any degree of risk is proven, however small, a BFOR is established. I have already indicated that the tribunal was not satisfied by the evidence that there was any increased risk. Hence, it is not necessary to deal with this issue. If it were, one would have to take into account the Central Alberta Dairy Pool case, where Madame Justice Wilson indicated that the Bhinder case may have been incorrectly decided on the basis that the increased risk there was only marginal, and, hence, may not have been sufficient to support the BFOR defence.

I do not think it can be seriously questioned that the so-called “minimal” standard represents a serious threat to the attainment of objectives underlying human rights legislation. It could circumvent easily the purpose of the Act and deprive persons of the right to equal opportunity. For example, the application of the “minimal” standard would justify an employer’s refusal to hire persons in wheelchairs because they present an additional risk in case of fire, or the government’s refusal to issue driver’s licences to persons with controlled disabilities: see Mahon v. Canadian Pacific Ltd. (1985), 7 C.H.R.R. D/3278 (Can. Trib.).

Ultimately, it must be accepted that persons with a disability will always pose a greater risk of harm than other members of society. What disabled persons can or cannot do competently, or the risk which they pose because of their disabilities, is too easily informed by ignorance. Human rights legislation is enacted to confront and ameliorate the reality that prejudice and stereotyping will conspire to deny persons employment opportunities with respect to jobs they can competently perform. The “minimal” standard of risk assessment represents a substantial threat to the realization of that objective.

In my opinion, the proper standard, outlined in Dairy Pool, embraces a “substantial” increase in safety risk within tolerable limits. The express doubt cast by the Supreme Court on the Bhinder standard provides a legal basis upon which to depart from the earlier jurisprudence without offending the doctrine of stare decisis. Nothing is to be gained by reverting to or insisting on a standard of risk assessment which fails to reflect our evolving appreciation of human rights. It follows that the “minimal” standard invoked by the Tribunal constitutes a sufficient ground on which to set aside its decision. It is an error of law to apply a threshold risk standard which is at odds with that established at law. Once the proper standard is recognized and applied, then it becomes a question of fact, or mixed fact and law, whether in anyone case the threshold standard has been satisfied.

The ascendancy of the Dairy Pool reasoning does not elucidate the threshold of “tolerable” or “substantial” risk. The nature of this problem is illustrated by the hypothetical example of an airline’s attempt to bar from employment commercial pilots with heart conditions. The decision-maker’s assessment of whether coronary fitness constitutes a BFOR will require an evaluation of the risk of employee failure against its potentially devastating consequences and, more generally, the balancing of human rights objectives against the legitimate interests and expectations of the public. In my view, this process demands an explicit recognition of the factors impacting upon risk assessment for BFORs. The following considerations are self-evident.

First, what is the nature of the employment? Second, what is the empirical, rather than speculative, likelihood of employee failure? (See Etobicoke, at pages 211-213.) Third, is the risk of employee failure restricted to health and safety considerations? If the only risk is to a private employer’s economic gain, should the BFOR defence be permitted to prevail? Finally, how serious is the potential harm arising from employee failure? There is a substantial difference between serious risk of harm (a broken arm) and a risk of serious harm (death). In my view, it would be irresponsible to sweep aside briskly the impact of employee failure on its potential victims. Tribunals and human rights commissions should not, as a matter of conscience or law, be permitted to shelter behind immunity from judicial review for results which in another context might well attract civil liability. The laudable pursuit of human rights cannot be exercised responsibly in a vacuum.

With respect to the foregoing, I wish to comment briefly on the first question—the true nature of the employment being sought by the complainant. I have no difficulty in applying the “soldier first” policy in the recruitment context. Those who seek entrance in the CAF must do so on the premise that they will be called upon to perform military duties. Thus, even though it might be argued convincingly that the likelihood of musicians being placed in combat-type situations is remote that consideration must remain irrelevant when evaluating the risk of employee failure. The fact that the CAF has established a special classification (V-5), for serving members who do not meet the minimal entry visual acuity standard, does not detract from my opinion.

There is an obvious practical consideration which attests to the need for stringent minimum entry standards in the CAF. The physical capabilities of most CAF members will deteriorate as a result of the natural aging process. Because of the CAF’s particular overarching mandate, high medical standards are necessarily demanded of recruits. That is the very premise underlying the V-5 visual acuity standard discussed earlier. This category allows the CAF to accommodate those who may have devoted the better part of their life to military service. Against this backdrop, I am of the opinion that the differential treatment accorded to recruits, under the CAF’s minimum entry standards, has a rational basis compatible with the objectives of the Act.

(c)        A Reasonable Alternative—Individual Testing

The Commission’s final argument is that the complainant should be allowed to become a member of the CAF if she successfully completes its basic training programme. The CAF objects on the grounds that the complainant is only entitled to “individual testing” in respect of her visual acuity and that her visual disability would expose her and other CAF members to risk of injury during basic training.

Should the “substantial” standard for risk assessment lead to the conclusion that the CAF’s uncorrected visual acuity standard is a BFOR, this would leave unanswered whether there is an alternative and more reliable method of ascertaining the risk presented by the complainant. In my view, the Commission’s position finds no support in the jurisprudence: Canada (Attorney General) v. Saint Thomas and Canadian Human Rights Commission (1993), 162 N.R. 228 (F.C.A.); Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279; and Saskatchewan (Human Rights Commission) v. Saskatoon (City), [1989] 2 S.C.R. 1297.

To accept the Commission’s argument, it is necessary to assume that basic training is intended to and does in fact replicate wartime conditions. If that assumption is invalid, then nothing is to be gained by allowing the complainant to undertake basic training. On this point, the Tribunal observed that “[basic training] is probably not a very good testing procedure to measure how an individual will perform in a real emergency, or in a wartime situation” (Tribunal’s reasons, at page D/216). The Tribunal also invoked the reasoning in Galbraith v. Canada (Canadian Armed Forces) (1989), 10 C.H.R.R. D/6501 (Can. Trib.). Therein, the tribunal held that “the hazards and stresses of military life cannot be replicated” and went on to conclude that “[individual] assessments would be inappropriate because of the difficulty, if not the impossibility, of replicating field conditions” (Galbraith, at pages D/6524-D/6525). In the present case, the Tribunal agreed with these observations. In my view, they are persuasive.

Even if basic training did duplicate wartime conditions sufficiently to evaluate the complainant’s ability to function effectively, I would be unwilling to risk the personal safety of her and other CAF members. As the tribunal in Galbraith adroitly observed, “one need not experiment with the likelihood of failure in order to gather statistical data in jobs which endanger public safety” (Galbraith, at page D/6514). In the circumstances, I see no basis on which to interfere with the Tribunal’s conclusion that basic training is an ineffective method for evaluating the risk of employee failure.

V

I would allow the application, set aside the decision of the Tribunal rendered on August 2, 1991, and remit the matter to the Tribunal for a determination in a manner consistent with the reasons herein.