A-211-89
Attorney General of Canada (Applicant)
v.
Mark Rosin and Canadian Human Rights Com
mission (Respondents)
INDEXED AS: CANADA (ATTORNEY GENERAL) v. ROSIN (CA.)
Court of Appeal, Heald, Stone and Linden
JJ.A.—Ottawa, November 6, 7 and December 7,
1990.
Human rights — Removal of monocular Armed Forces
cadet from parachuting course — Sight standard requiring
excellent vision in both eyes — Denying all one-eyed people
access to course discriminatory practice contrary to Canadian
Human Rights Act, ss. 5, 7 and 10 — Course "service cus
tomarily available to public" within s. 5 although only open to
members of Armed Forces and cadets — "Public" if segment
of public having access to course — Any person aged 12 to 18
can join cadets — Cadets employees within ss. 7 and 10 —
Subject to control, remunerated and benefitting employer —
Evidence supporting tribunal's finding sight standard not bona
fide occupational requirement — Within tribunal's jurisdiction
under s. 53(3) to award interest — S. 54(2)(a) authorizing
order respondent's reinstatement in course not to reduce
number of students otherwise enrolled.
Armed forces — Monocular cadet removed from parachut
ing course as not meeting sight standard requiring excellent
vision in both eyes — Prima facie discriminatory practice
based on disability within Canadian Human Rights Act, ss. 5,
7 and 10 — Course customarily available to general public
within s. 5 although offered only to Armed Forces personnel
— Anyone aged 12 to 18 can join cadets and apply for course
— Cadets "employees" within ss. 7 and 10 — Closely con
trolled, remunerated unlike children at summer camp —
Benefit to Armed Forces as recruits sought from among cadets
— Sight standard not bona fide occupational requirement.
Construction of statutes — Canadian Human Rights Act, ss.
5, 7, 10, 15, 53 — Human rights legislation given full, large
and liberal interpretation to best ensure objects attained —
Meaning of 'public", "customarily" and "general" in s. 5 and
"employee" in ss. 7 and 10.
This was an application to set aside the order of the Human
Rights Tribunal that sections 5, 7 and 10 of the Canadian
Human Rights Act had been breached and that no bona fide
occupational requirement justifying the discriminatory prac-
tices pursuant to section 15 had been established. Section 5
makes it a discriminatory practice to deny access to a service
customarily available to the general public on a prohibited
ground of discrimination (which includes disability); section 7
makes it a discriminatory practice to differentiate adversely in
relation to an employee on a prohibited ground of discrimina
tion; section 10 makes it a discriminatory practice for an
employer to establish a policy that deprives a class of individu
als of any employment opportunities on a prohibited ground of
discrimination; and section 15 justifies such discriminatory
practices where there is a bona fide occupational requirement
(BFOR) or justification. Rosin was an 18-year old army cadet
who was removed from a parachuting course because he had
only one eye. An Armed Forces sight standard required excel
lent vision in both eyes to qualify for the course, thereby
denying all one-eyed people access thereto. The Commission
ordered that Rosin be allowed to take the course, that the
number of persons otherwise enrolled should not be reduced by
such action, and that $1,500 compensation for loss and hurt
feelings plus interest be paid to him. The Attorney General
argued that section 5 did not apply because the course was not
"customarily available to the general public" and that sections
7 and 10 did not apply because cadets were not employees. The
issues were whether (1) sections 5, 7 and 10 were applicable to
the parachuting course (2) the sight standard was a BFOR
under section 15 and (3) the tribunal exceeded its jurisdiction
with regard to the remedies it ordered.
Held, the application should be dismissed.
Human rights legislation should be given a fair, large and
liberal interpretation as will best ensure that its objects are
attained. The course was "customarily available to the public"
within section 5. Although the course was available only to
members of the Armed Forces and certain cadets, any person
aged 12 to 18 years can join the cadets and then apply for the
course. For a service to be publicly available, it is not required
that all members of the public have access to it. It is enough
that a segment of the public can utilize the service. Requiring
that certain qualifications or conditions be met does not deprive
an activity of its public character. Any service offered by a
government is available to the public. The words "customarily"
and "general" used in the English version of section 5 are not
significant as the French version does not contain equivalent or
corresponding words.
Cadets are "employees" to whom sections 7 and 10 apply.
Normally, for the employment relationship to exist, money
must be paid as wages, but in the human rights context a more
flexible test is applied. Since human rights legislation is to be
interpreted so as to advance its broad purposes "employ" may
be used in the sense of "utilize". Rosin was an employee in the
sense intended to be covered by the legislation. There was a
situation of close control in that he was required to wear a
uniform, obey rules, follow commands, eat what he was fed and
sleep when told to. There was remuneration in the form of an
honorarium paid upon completion of the course in addition to
free room and board. The Attorney General's argument, that
Rosin was in a position similar to that of a child at summer
camp, could not be accepted. There was potential benefit to the
Armed Forces in that it recruits future members from among
these trained cadets. There was a prima facie breach of sections
7 and 10.
Nor was discrimination justified as a BFOR. In cases of
direct discrimination, the employer must justify the discrimina
tory rule as a whole. Unlike indirect discrimination cases, it is
not necessary to consider measures adopted to accommodate
individuals. The rule stands or falls in its entirety since it
applies to all members of the group equally. The onus is on the
employer to establish through convincing evidence that the rule
or standard is a BFOR on the balance of probabilities. It must
be demonstrated that it was made in good faith and that it was
"reasonably necessary" to ensure the efficient performance of
the job without endangering the safety of the employee, fellow
employees and the public. The Court could not interfere with
the tribunal's conclusion that there was no increased risk
justifying the BFOR as there was sufficient evidence support
ing such a conclusion. While the tribunal mentioned the attrib
utes of Rosin, it did not rely on them in holding that the
standard was not a BFOR. Its reasons show that it would have
found that the regulation was an improper generalization in
any event.
The tribunal had jurisdiction to make the order awarding
interest. While there is no specific provision expressly granting
the power to give interest, it is included in the power to "order
the person to pay such compensation to the victim, not exceed
ing five thousand dollars, as the Tribunal may determine" in
subsection 53(3). The tribunal also had jurisdiction to provide
in its order that no one be displaced from the course as a result
of its order so that a violation of paragraph 54(2)(a) would be
avoided.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 5,
7, 10, 15, 53, 54.
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Interpretation Act, R.S.C. 1970, c. I-23.
National Defence Act, R.S.C., 1985, c. N-5, s. 46.
CASES JUDICIALLY CONSIDERED
APPLIED:
Ontario Human Rights Commission and O'Malley v.
Simpson-Sears Ltd. et al., [1985] 2 S.C.R. 536; (1985),
52 O.R. (2d) 799; 23 D.L.R. (4th) 321; 17 Admin. L.R.
89; 9 C.C.E.L. 185; 86 CLLC 17,002; 64 N.R. 161; 12
O.A.C. 241; Saskatchewan Human Rights Commission
v. Saskatchewan (Department of Social Services) (1988),
52 D.L.R. (4th) 253; [1988] 5 W.W.R. 446; 9 C.H.R.R.
D/5181 (Sask. C.A.); Singh (Re), [1989] 1 F.C. 430;
(1988), 86 N.R. 69 (C.A.); Canada (Attorney General) v.
Druken, [1989] 2 F.C. 24; (1988), 53 D.L.R. (4th) 29; 23
C.C.E.L. 15, 9 C.H.R.R. D/5359; 88 CLLC 17,024; 88
N.R. 150 (C.A.); Courtois v. Canada (Dept. of Indian
Affairs and Northern Development) (1990), 11 C.H.R.R.
D/363; Hobson v. British Columbia Institute of Tech
nology (1988), 9 C.H.R.R. D/4666; Pannu v. Prestige
Cab Ltd. (1987), 8 C.H.R.R. D/3909; affd (1987), 8
C.H.R.R. D/3911 (Alta. C.A.); Re Prue (1984), 57 A.R.
140; 15 D.L.R. (4th) 700; 35 Alta. L.R. (2d) 169; 6
C.H.R.R. D/2544 (Q.B.); Canadian Pacific Ltd. v.
Canada (Human Rights Commission), [19911 1 F.C. 1
(C.A.); Central Alberta Dairy Pool v. Alberta (Human
Rights Commission), [1990] 2 S.C.R. 489.
REFERRED TO:
Insurance Corporation of British Columbia v. Heerspink
et al., [1982] 2 S.C.R. 145; (1982), 137 D.L.R. (3d) 219;
[1983] 1 W.W.R. 137; 39 B.C.L.R. 145; 82 CLLC
17,014; [1982] I.L.R. 1-1555; 43 N.R. 168; Robichaud v.
Canada (Treasury Board), [1987] 2 S.C.R. 84;
(1987), 40 D.L.R. (4th) 577; 87 CLLC 17,025; 75 N.R.
303; Gay Alliance Toward Equality v. Vancouver Sun,
[1979] 2 S.C.R. 435; (1979), 97 D.L.R. (2d) 577; [1979]
4 W.W.R. 118; 10 B.C.L.R. 257; Monsoorali Rawala
and Victor Souza v. DeVry Institute of Technology
(1982), 3 C.H.R.R. D/1057; Anvari v. Canada (Employ-
ment and Immigration Commission) (1988), 10
C.H.R.R. D/5816; Frank Cormier v. Alberta Human
Rights Commission (1984), 5 C.H.R.R. D/2441; Ontario
Human Rights Commission et al. v. Borough of Etobi-
coke, [1982] 1 S.C.R. 202; (1982), 132 D.L.R. (3d) 14;
82 C.L.L.C. 17,005; 40 N.R. 159; Canadian Pacific Ltd.
v. Canada (Canadian Human Rights Commission),
[1988] 1 F.C. 209; (1987), 40 D.L.R. (4th) 586 (C.A.);
Canadian Armed Forces v. Morgan, Sept. 14, 1990, not
yet reported (C.H.R.T.); Boucher v. Canada (Correction-
al Service) (1988), 9 C.H.R.R. D/4910; Chapdelaine v.
Air Canada (1987), 9 C.H.R.R. D/4449; Hinds v.
Canada (Employment and Immigration Commission)
(1988), 10 C.H.R.R. D/5683; Kearns v. P. Dickson
Trucking Ltd. (1988), 10 C.H.R.R. D/5700; Fontaine v.
Canadian Pacific Ltd. (1989), 11 C.H.R.R. D/288; Min
ister of Highways for British Columbia v. Richland
Estates Ltd. (1973), 4 L.C.R. 85 (B.C.C.A.); Re West-
coast Transmission Co. Ltd. and Majestic Wiley Con
tractors Ltd. (1982), 139 D.L.R. (3d) 97; [1982] 6
W.W.R. 149; 38 B.C.L.R. 310 (C.A.); Canadian Broad
casting Corp. v. C.U.P.E., [1987] 3 F.C. 515; (1987), 38
D.L.R. (4th) 617; 76 N.R. 155 (C.A.).
AUTHORS CITED
Greschner, Donna "Why Chambers is Wrong: A Purpo-
sive Interpretation of `Offered to the Public' " (1988),
52 Sask L. Rev. 161.
Canada. Canadian Human Rights Commission. The
Effects of the Bhinder Decision on the Canadian
Human Rights Commisssion: A Special Report to
Parliament. Ottawa: Canadian Human Rights Com
mission, 1986.
Tarnopolsky, Walter Surma, Discrimination and the
Law: Including Equality Rights under the Charter,
revised by William F. Pentney, Toronto: Richard De
Boo, 1985.
COUNSEL:
Bruce S. Russell and Capt. Kirby Abbott for
applicant.
René Duval and Margaret Rose Lefevre for
respondents.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Canadian Human Rights : Commission for
respondents.
The following are the reasons for judgment
rendered in English by
LINDEN J.A.: Mark Rosin was an 18-year-old
Royal Canadian Army Cadet, who was part way
through a summer course in parachuting when he
was removed summarily from the course by his
commanding officer after it was discovered that he
had only one eye. For several previous summers,
Rosin had served as an exemplary cadet, hoping
and dreaming that he would one day be accepted
into the basic three-week parachuting course and
earn his wings. One of these courses, regularly
offered to ordinary members of the Armed Forces,
was open each summer to cadets. In the summer of
1984, Rosin was among the 54 cadets selected. He
successfully completed the first two weeks of the
three-week course when it was discovered that he
had a glass eye, replacing an eye lost when he was
seven years old. Although this information was
known to the officers he had worked with in the
past, it was not put in the application form he
filled out in applying for the course because it was
not specifically asked for and because he and his
medical adviser did not think that his monoculari-
ty was relevant. Unbeknownst to Rosin, however,
there existed an armed forces sight standard that
had to be met in order to qualify for the parachute
course. This standard required that each partici
pant have excellent vision in both eyes. In short,
the standard denied all one-eyed people access to
the course.
Rosin filed a complaint with the Canadian
Human Rights Commission, alleging violation of
sections 5, 7 and 10 of the Act [Canadian Human
Rights Act, R.S.C., 1985, c. H-6]. After a hearing
before a one-person tribunal [(1989), 10 C.H.R.R.
D/6236], it was found that there had indeed been
breaches of sections 5, 7 and 10, and that no bona
fide occupational requirement had been estab
lished. Various remedies were ordered, including a
directive that Rosin be allowed to enrol in the
basic parachuting course and that compensation of
$1,500 plus interest be paid to him.
This section 28 [Federal Court Act, R.S.C.,
1985, c. F-7] application has been brought to set
aside the order of the tribunal. While accepting
that the exclusion of all one-eyed individuals from
the course was prima facie discrimination on the
basis of disability, counsel for the Armed Forces
contended that sections 5, 7 and 10 were not
applicable to this parachuting course. Section 5
did not cover the situation, it was argued, since
this course was not a "service . .. customarily
available to the general public". Further, sections
7 and 10 did not apply, it was contended, because
the cadets were not "employees" of the Armed
Forces. It was then argued that the sight standards
were "bona fide occupational requirements" under
section 15. Lastly, it was contended that the Tri
bunal exceeded its jurisdiction with regard to two
of the remedies it ordered.
I shall deal with each of these four submissions
in turn.
1. Customarily available to the general public
The first issue is whether the parachuting course
offered by the Canadian Forces at Edmonton was
a service or facility customarily available to the
general public according to the wording of section
5 of the Canadian Human Rights Act which reads:
5. It is a discriminatory practice in the provision of goods,
services, facilities or accommodation customarily available to
the general public
(a) to deny, or to deny access to, any such good, service,
facility or accommodation to any individual, or '
(b) to differentiate adversely in relation to any individual,
on a prohibited ground of discrimination.
Although it was not questioned that this course
was either a "facility" or "service", counsel for the
applicant strenuously argued that it was not cus
tomarily available to the general public. He con
tended that it was a specialist military course
available only to members of the Armed Forces
and to certain cadets on a restricted access basis.
Ordinary members of the public, he suggested, did
not have access to the course. It was a two-stage
process, the public perhaps having access to the
first but not the second. For the respondents,
however, it was pointed out that any young person
between 12 and 18 years of age could join the
Royal Canadian Army Cadets, which had 24,000
members, and then apply to attend this course.
The tribunal found that section 5 covered this
facility or service and I agree with that conclusion.
In the interpretation of human rights codes, the
Canadian courts have consistently accorded them
a meaning which will advance their broad pur
poses. Our courts view human rights codes not as
ordinary statutes but as special, as fundamental, as
"almost constitutional" in their nature. For exam
ple, Mr. Justice Lamer, as he then was, declared
that a human rights code "is not to be treated as
another ordinary law of general application. It
should be recognized for what it is, a fundamental
law." (See Insurance Corporation of British
Columbia v. Heerspink et al., [1982] 2 S.C.R.
145, at page 158; see also La Forest J. in Robi-
chaud v. Canada (Treasury Board), [1987] 2
S.C.R. 84.) Mr. Justice McIntyre of the Supreme
Court of Canada reiterated this view in Ontario
Human Rights Commission and O'Malley v.
Simpson-Sears Ltd. et al., [1985] 2 S.C.R. 536,
at page 547 when he wrote:
The accepted rules of construction are flexible enough to enable
the Court to recognize in the construction of a human rights
code the special nature and purpose of the enactment ... and
give to it an interpretation which will advance its broad pur
poses. Legislation of this type is of a special nature, not quite
constitutional but certainly more than the ordinary — and it is
for the courts to seek out its purpose and give it effect. The
Code aims at the removal of discrimination.
Chief Justice Dickson (as he then was) has
outlined the correct way to approach human rights
legislation. Such laws should be given not only
their plain meaning but also "full recognition and
effect" and, in accordance with the Interpretation
Act [R.S.C. 1970, c. I-23], "a fair, large and
liberal interpretation as will best ensure that their
objects are attained". Chief Justice Dickson
warned: "We should not search for ways and
means to minimize those rights and to enfeeble
their proper impact". (See Canadian National
Railway Co. v. Canada (Canadian Human Rights
Commission), [1987] 1 S.C.R. 1114, at page
1134.)
Utilizing this approach, it is clear that the tri
bunal did not err in deciding that this course was
"customarily available to the general public".
Canadian courts have broadly interpreted these
words, as well as other similar word formulae used
to express this idea, in the various statutes of the
provinces, the United Kingdom and the United
States. The essential aim of the wording is to
forbid discrimination by enterprises which purport
to serve the public. (See Tarnopolsky & Pentney,
Discrimination and the Law: Including Equality
Rights under the Charter (1985), chapter 11.)
In order for a service or facility to be publicly
available, it is not required that all the members of
the public have access to it. It is enough for a
segment of the public to be able to avail them
selves of the service or facility. Requiring that
certain qualifications or conditions be met does not
rob an activity of its public character. The cases
have shown that "public" means "that which is not
private", leaving outside the scope of the legisla
tion very few activities indeed.
A leading decision illustrating these principles,
particularly as they apply to government, is Sas-
katchewan Human Rights Commission v. Sas-
katchewan (Department of Social Services)
(1988), 52 D.L.R. (4th) 253 (Sask. C.A.) where
Mr. Justice Vancise held that the Department of
Social Services could not discriminate against
individuals by deciding whether they could receive
social benefits on the basis of their marital status.
The legislation in Saskatchewan forbade discrimi
nation against persons with respect to "accommo-
dation, services, or facilities to which the public is
customarily admitted or which are offered to the
public". Mr. Justice Vancise observed [at pages
266-268]:
Broadly speaking, services provided by the Crown are avail
able to all members of the public. Most services the Crown
provides can be described as publicly available benefits .... In
most cases, the receiver of a government service will be
required to follow prescribed application procedures and to
demonstrate that he qualifies for the service being offered.
Most government services are intended to benefit some specific
class according to perceived governmental policies and objec
tives. Eligibility criteria and application forms generally ensure
the impartial and universal application of services rather than a
restriction of an offering of the service to the public.
The fact that a service is offered to the public does not mean
that it must be offered to all members of the public. The
government can impose eligibility requirements to ensure that
the programme or services reaches the intended client group.
The only restriction is that the government cannot discriminate
among the client group, that is, the elderly, the poor or others,
on the basis of the enumerated characteristics set out in the
Code.
The Saskatchewan Court of Appeal, in arriving
at its decision, relied on an article by Professor
Donna Greschner, "Why Chambers is Wrong: A
Purposive Interpretation of `Offered to the Pub
lic' " (1988), 52 Sask. L. Rev. 161 where it is
written [at page 183]:
The interpretation of "offered to the public" ... should be as
follows: any service offered by a government is a service offered
to the public. This interpretation furthers the policy of the
Code of eliminating discrimination, for all governmental ser
vices would be covered. It is also consonant with the overall
expansive scope of the Code .... A government by its nature
has only public relationships with persons ....
This reasoning is persuasive. It is difficult to
contemplate any government or branch of govern
ment contending that a service it offered was a
private one, not available or open to the public.
Indeed, it may well be said that virtually every
thing government does is done for the public, is
available to the public, and is open to the public.
Moreover, to allow a government to evade the
operation of the Code merely by setting up eligibil
ity requirements and then arguing that the pro
gram is not open to the public is unacceptable; a
program is still offered to the public, even though
all members of the public cannot avail themselves
of it.
It will be noted that the English wording of the
Canadian Human Rights Act being considered
here is not exactly the same as the wording utilized
in the Saskatchewan legislation. The federal stat
ute speaks of services "customarily available to the
general public", whereas the Saskatchewan law
talks of services "offered to the public". While it
may appear at first blush that these differences in
wording may be significant and that the federal
law is to have a narrower scope than the Saskatch-
ewan legislation, closer analysis leads me to con
clude that both word formulae convey essentially
the same meaning.
The first and most important reason for this is
that the French version of the Canadian Human
Rights Act, which is entitled to equal status in
statutory interpretation, uses the phrase services
"destinés au public". There is no adverb equiva
lent to "customarily", nor is there any adjective
modifying the word "public" that would corre
spond to "general". This leads me to the conclu
sion that the words "customarily" and "general"
used in the English version of the Canadian
Human Rights Act are not significant.
A second reason that leads me to conclude that
the word "customarily" is not significant is that
the Saskatchewan legislation uses it in the same
section in connection with "accommodation", but
not in relation to "services and facilities". In addi
tion to possible stylistic considerations, it may be
that historical reasons may explain the use of the
word "customarily" in relation to "accommoda-
tion". (See Tarnopolsky & Pentney, Discrimina
tion and the Law: Including Equality Rights
under the Charter (1985), chapter 11.)
A third reason not to emphasize the slight dif
ferences in the language used in connection with
these provisions is that no court seems to have
done so in the past, at least in relation to govern
mental services. (It may be that, in dealing with
private sector organizations which offer advertis
ing services to the public, different considerations
might be taken into account. See Gay Alliance
Toward Equality v. Vancouver Sun, [1979] 2
S.C.R. 435, at page 455, per Martland J.) We
should not inspect these statutes with a micro
scope, but should, as mentioned above, give them a
full, large and liberal meaning consistent with
their favoured status in the lexicon of Canadian
legislation.
Additional support for this view can be obtained
from Singh (Re), [1989] 1 F.C. 430, a decision of
this Court, where Mr. Justice Hugessen, writing
for the Court, intimated that services rendered by
public servants in administering the Immigration
Act. 1976 [S.C. 1976-77, c. 52] might well be
"considered services customarily available to the
public". Without making any final determination
on the point, because it was unnecessary to do so,
Mr. Justice Hugessen opined that it was
"arguable" that "by definition, services rendered
by public servants at public expense are services to
the public" and within section 5 and held [at pages
440-4411:
... it is not by any means clear to me that the services
rendered, both in Canada and abroad, by the officers charged
with the administration of the Immigration Act (1976) are not
services customarily available to the general public.
According to Mr. Justice Hugessen, then, echoing
Mr. Justice Vancise and Professor Greschner,
these government services might be said to be
available to the public and, hence, properly fall
within section 5.
Another decision of this Court, consistent with
this conclusion,' is Canada (Attorney General) v.
Druken, [1989] 2 F.C. 24, where it was initially
suggested in the factum of the Attorney General
that unemployment insurance benefits were not
"services customarily available to the public", but
this argument was not pursued. Mahoney J.A.,
speaking for. the Court, explained [at page 28] that
the "applicant appears to have found persuasive"
the dictum of Mr. Justice Hugessen in Singh (Re),
supra. Unemployment insurance, then, was
conceded to be a service customarily available to
the general public, despite its limited availability.
In addition to these appellate court decisions,
there are several human rights tribunal decisions
which have adopted this view. One of the most
recent cases is Courtois v. Canada (Dept. of
Indian Affairs and Northern Development)
(1990), 11 C.H.R.R. D/363, where it was decided
[at pages D/383-D/384] that it cannot be main
tained that a reserve school "does not constitute a
service customarily available to the general public
simply because this reserve school is limited
primarily to Indians. In fact, although it is a
so-called Band school, the costs of these schools
are nevertheless paid primarily by public funds. To
claim that these schools are not a public service
because they are intended solely for Indians would
be to say, ... that all persons who belong to a
special group (that is, Indians) are no longer mem
bers of the community as a whole, which would
open the door to all kinds of discriminatory
practices."
A helpful explanation of the meaning of these
words has also been offered in Hobson v. British
Columbia Institute of Technology (1988), 9
C.H.R.R. D/4666, at page D/4670:
I find that the mere fact of authority to establish substantial
entrance requirements or qualifications for entrance to publicly
funded educational institutions such as the respondent or uni
versities or colleges does not mean that these institutions and
the services they provide are not customarily available to the
public. Additionally, it is not necessary that all members of the
public be able to demand the services or entrance to the facility
as a matter of right for such to be customarily available to the
public. In the instance of public educational institutions, such
as the respondent, it is sufficient, in this respect, if such services
or facilities are customarily available to the "public" in the
sense of "all persons legally or properly qualified."
(See also Monsoorali Rawala and Victor Souza v.
DeVry Institute of Technology (1982), 3
C.H.R.R. D/1057; Anvari v. Canada (Employ-
ment and Immigration Commission) (1988), 10
C.H.R.R. D/5816.)
In conclusion, given the judicial approach taken
to human, rights legislation, given the importance
of the French version of the legislation referred to
above, and given the other considerations outlined
above, I conclude that the tribunal was correct in
holding that this course was a service or facility
"customarily available to the general public".
2. Employment
The second issue is whether Mark Rosin was an
employee of the Armed Forces when he was
involved with the parachuting course and, hence,
whether he came within sections 7 and 10 of the
Canadian Human Rights Act which read:
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, employee
organization or organization of employers
(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.
It was argued by counsel for the applicant that
these cadets were not employed by the army. He
suggested that they were not being paid any
"salary" and that they were not doing any work
for the army. He likened them to teenagers attend
ing a summer camp, who were receiving training.
Counsel for the respondents contended that they
were employees, who were under the control of the
Armed Forces, who received some money for their
services, and whose presence benefited the army.
The tribunal, although somewhat confused in its
language and reasoning, seemed to find that sec
tions 7 and 10 applied in these circumstances and I
agree.
Remembering the broad and liberal approach
that must be taken to this type of legislation, I
have no difficulty in concluding that Mark Rosin
was an "employee", as this term is used in human
rights legislation, during the time he was a cadet in
1984. There is little in the way of specific defini
tions of employment either in the human rights
legislation nor in the cases themselves. (See Tar-
nopolsky and Pentney, supra, chapter 12.) What is
clear is that courts have interpreted the words
broadly, finding employment relationships to exist
in this context where in other contexts they might
not have so found. Normally, for employment
relations to exist, money is paid as wages to some
one who works for the person who pays those
wages, but in the human rights context the situa
tion is much more flexible. The cases about vicari
ous liability are not particularly helpful here.
What is necessary is to give the word employment
a "liberal interpretation". (See McDonald J. in
Frank Cormier v. Alberta Human Rights Com
mission (1984), 5 C.H.R.R. D/2441.)
There are cases where an employment relation
ship has been found for the purposes of this legisla
tion even though salary was not paid by an
"employer" nor was work done directly for the
employer. In Pannu v. Prestige Cab Ltd. (1987), 8
C.H.R.R. D/3909, for example, where members of
the Sikh faith were denied positions because of
their religion, the Alberta Queen's Bench held that
an employment relationship existed, even though
the individual taxi drivers did not work for and
were not paid any remuneration by Prestige Cab,
which operated a fleet of taxis. They earned
money by working but it was not paid to them by
the taxi fleet operator. "The mode of payment ...
is not determinative of the relationship", conclud
ed Mr. Justice Bracco [at page D/3911]. This
decision was affirmed by the Alberta Court of
Appeal [(1987), 8 C.H.R.R. D/3911], Chief Jus
tice Laycraft explaining that here, because of the
need to interpret liberally, the word "employ" may
be used "in the sense of `utilize' ". Although there
may not have been an employment relationship in
the traditional sense, there certainly was in the
sense meant in this type of legislation, that is,
"utilization".
Another example of an employment relationship
being found in the context of human rights legisla
tion, where it might have been otherwise in
another situation, was Re Prue (1984), 57 A.R.
140 (Q.B.), a case of age discrimination. Associate
Chief Justice Miller, relying on the recent trend in
the cases, found that a board of commissioners of
police and a police chief were employers for the
purposes of human rights legislation, even though
the salaries of the officers were paid by and the
actual employment contract was with the City of
Edmonton, because the Act was "remedial legisla
tion" and "as such it is entitled to a fair, broad and
liberal definition". There may not have been an
employment contract with those doing the dis
criminating, but there was a sufficient employment
relationship nevertheless. At page 151, Miller
A.C.J. proclaimed:
I find the words were used in a sense to permit Albertans to be
protected from wrongful discrimination in the manner in which
they seek a livelihood. These words used in the Act are such
forward looking words. They seek to protect Albertans from
wrongful discrimination regardless of the particular mode of
earning income which the individual might choose. Thus Alber-
tans are protected in their ability to compete on an equal basis.
The ancient common law master-servant relationship cannot
have been intended to apply to define the meaning of these
words in a manner allowing technical legal rules to limit the
rights of any Albertans.
I can see no public policy that would favour the narrow
technical meaning that has been argued for these words. Coun
sel argue that if I find that the words apply to an "office
holder" then a person might complain of wrongful discrimina
tion in, say, the appointments of Provincial Court Judges. I do
not see the reason for fearing such an application, should it ever
arise. Surely the Halls of Justice are not a place where wrong
ful discrimination should be accepted while the rest of Alberta
society is to be conducted at a higher standard. The administra
tion of justice must serve as an example of the operation of
truth in the open forum of the courtroom. It should not shield
behind fanciful notions and place itself above the law. The
argument applies a fortiori to other servants of the administra
tion of justice, including policemen. How can one say that
wrongful discrimination might be acceptable in the administra-
tion of justice? Yet this would be the effect of looking to the
narrow meaning of the words in the Act that have been
suggested to me.
This Court has recently indicated that it will
also accord a broad and liberal meaning to the
word "employ", as used in the Canadian Human
Rights Act. In Canadian Pacific Ltd. v. Canada
(Human Rights Commission), [1991] 1 F.C. 571
(C.A.) a cook was dismissed by CP when it was
discovered that he was suffering from AIDS. He
was actually not "under contract" with CP but
worked for a subcontractor, Smith (1960) Limited,
who paid his salary and assigned him to cook for a
CP railroad gang in Saskatchewan. Chief Justice
Iacobucci agreed with the "authorities that gave a
broader meaning to `employ' than that afforded by
the technical master-servant relationship". He
quoted Chief Justice Laycraft in Pannu (supra)
and adopted the meaning of "to employ" as "to
utilize", concluding that the tribunal was correct
in deciding that "CP indirectly refused to continue
to employ Mr. Fontaine".
In the light of these authorities, I find that the
tribunal was correct in holding that sections 7 and
10 were applicable to Rosin. Although he may not
have been an employee in the traditional sense of
master and servant, he was in the sense meant to
be covered by this legislation. There was a situa
tion of control over him, there was some remunera
tion and there was clearly some benefit derived by
the Armed Forces from his attendance. He was
certainly being "utilized" by the Armed Forces.
Rosin was controlled in many ways: he was
required to wear a cadet uniform; he had to obey
all the rules and follow all the commands he
received; he ate what he was fed and slept when he
was told to sleep. In short, he was very closely
controlled by the Armed Forces in all that he did.
This element of control is enshrined in the Nation
al Defence Act, R.S.C., 1985, c. N-5, which reads,
in part:
46. (1) The Minister may authorize the formation of cadet
organizations under the control and supervision of the Canadi-
an Forces to consist of persons not less than twelve years of age
who have not attained the age of nineteen years.
(2) The cadet organizations referred to in subsection (1)
shall be trained for such periods, administered in such manner,
provided with materiel and accommodation under such condi
tions and shall be subject to the authority and command of
such officers as the Minister may direct. [Italics mine.]
As for remuneration, Rosin may not have been
paid a salary as such, but he received $240 when
he was removed from the course, the same amount
he would have received had he completed it. This
was called an honorarium by the Armed Forces,
but it was nevertheless money paid to the cadets at
the end of the summer sessions. Children at
summer camp do not receive any money at all. On
the contrary, they pay to go. In addition, Rosin
received room and board, which, although not
payment in the usual sense, is certainly something
of value that was given to him while he attended
the course.
As far as the work done by Rosin is concerned,
it may be said that he did not do any productive
work, in the traditional sense of the word, and that
he was merely being trained and taught. It should
be pointed out, however, that in many present-day
jobs, employees frequently receive education and
training which is considered by their employers to
be part of their work or duties. They are usually
paid a salary during these education or training
periods. One cannot help but note also that, except
in time of war or emergency, the work of the
regular Armed Forces is in large part that of
training, of getting into a state of readiness and of
staying prepared so that they may respond swiftly
and effectively if called upon. Moreover, these
camps for army cadets are not operated for altruis
tic reasons alone; the Armed Forces expressly set
out in their regulations that they wish to recruit
from among these cadets future members of the
Armed Forces. This is probably what was meant
by the tribunal when it discussed "salaries ... paid
by implication" in "recruiting cadets and people
who may join the Forces in the future". In other
words, there were potential benefits that might be
garnered by the Armed Forces from the participa
tion of these cadets in these summer programs.
I have no difficulty, therefore, in concluding,
considering all of these matters — control, remu
neration and benefit — that the Armed Forces
employed Rosin, in the sense meant by the
Canadian Human Rights Act, during the summer
of 1984. There was, consequently, a prima facie
breach of sections 7 and 10.
3. Bona Fide Occupational Requirement (BFOR)
Having decided that the Canadian Human
Rights Act is applicable and that, prima facie,
sections 5, 7 and 10 have been breached, it is now
necessary to determine whether the tribunal was
correct in holding that the discrimination was not
justified on the evidence presented at the hearing.
Section 15 of the Canadian Human Rights Act
reads, in part:
15. 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;
(g) in the circumstances described in section 5 or 6, an
individual is denied any goods, services, facilities or accom
modation or access thereto or occupancy of any commercial
premises or residential accommodation or is a victim of any
adverse differentiation and there is bona fide justification for
that denial or differentiation.
It is clear that acts done in apparent violation of
section 5 may be justified pursuant to paragraph
15(g) and conduct contrary to sections 7 and 10
may be excused pursuant to paragraph 15(a). The
standards set out in these two provisions are very
similar. It has recently been made clear by the
Supreme Court of Canada that there is no differ
ence between a bona fide occupational require
ment and a bona fide occupational qualification.
"they are equivalent and co-extensive terms." (See
Central Alberta Dairy Pool v. Alberta (Human
Rights Commission), [1990] 2 S.C.R. 489, at page
502 per Wilson J.) Similarly, it might be conclud
ed that the two phrases — "bona fide occupational
requirement" (as in paragraph 15(a)) and "bona
fide justification" (as in paragraph 15(g)) convey
the same meaning, except that the former is appli
cable to employment situations, whereas the latter
is used in other contexts. The choice of these
different words used to justify prima facie dis
crimination, therefore, are matters of style rather
than of. substance. I shall refer henceforth to both
of the above phrases as BFOR.
The law of BFOR has been clarified to some
extent by the Supreme Court in the recent decision
of Central Alberta Dairy Pool v. Alberta (Human
Rights Commission) (supra). Madame Justice
Wilson, writing for the majority (4-3) held that, in
cases of direct discrimination (which, it was
agreed, was the situation in this case), the employ
er must justify the discriminatory rule as a whole.
It is not necessary, as it is in cases of indirect
discrimination, to take into account any measures
adopted to accommodate any individuals involved.
In cases of direct discrimination, the rule stands or
falls in its entirety, since it applies to all members
of the group equally. In assessing the validity of
such a rule, the tribunal must decide whether it
was "reasonably necessary" to ensure the efficient
performance of the job without endangering the
safety of the employee, fellow employees and the
public. The onus is on the employer to establish
that the rule or standard is a BFOR. It is not
enough to rely on assumptions and so-called
common sense; to prove the need for the dis
criminatory rule convincing evidence and, if neces
sary, expert evidence is required to establish this
on the balance of probabilities. Without that
requirement, the protection afforded by human
rights legislation would be hollow indeed. Hence, it
is necessary, in order to justify prima facie direct
discrimination, to demonstrate that it was done in
good faith and that it was "reasonably necessary"
to do so, which is both a subjective and an objec
tive test. (See Central Alberta Dairy Pool, supra;
Ontario Human Rights Commission et al. v. Bor
ough of Etobicoke, [1982] 1 S.C.R. 202, per
McIntyre J. See also The Effects of the Bhinder
Decision on the Canadian Human Rights Com
mission: A Special Report to Parliament (1986).)
The tribunal's decision concerning the evidence
of BFOR is attacked on at least three grounds.
The first is that it ignored the evidence of the
Forces' experts to the effect that one-eyed para
chutists posed an increased risk to themselves and
others. If the evidence was ignored totally, it was
urged that this would be an error of law, leading to
an order setting aside the decision. If, however, the
evidence was not totally ignored, but was weighed
along with the other evidence and found unpersua-
sive, it would be within the discretion of the tri
bunal to reject it. There was evidence of an
opthamologist, Dr. (Capt.) L. T. Green, who,
although not a parachutist, indicated that one-
eyed people have a restricted field of vision and
their depth perception is affected, which, in his
view, might increase the risk of an accident. How
ever, the tribunal felt that the witness' testimony
about the risk was not necessarily his own view but
was "something advised by someone and which he
accepted in good faith." The applicant also called
two expert parachutists, Lt. Col. D. Bondurant
and Capt. Vida, who described the risk posed by
one-eyed parachutists, but no statistical data was
offered establishing that monocular parachutists
were more prone to accidents than other parachu
tists. The tribunal noted that these so-called
experts had no training in risk management,
indicating it was not impressed with their evidence.
The tribunal, therefore, did not accept this evi
dence on the ground that it was "impressionistic",
using the language of the Etobicoke case. The
tribunal also had before it the conflicting evidence
of Lt. Col. (ret.) A. Bellavance, who testified for
Rosin. He agreed that the more a parachutist can
see, the better it is. However, he also indicated
that one-eyed people can do parachuting and that
other countries did not bar one-eyed parachutists
from their armed forces. The tribunal also con
sidered an article about monocularity which was
ambiguous about the risks involved in various
activities. The tribunal, perhaps somewhat careless
in its use of language, concluded that there was
"no evidence" as to the BFOR. On a careful
reading of the reasons, however, it can be seen that
this wording was meant to convey not that there
was "no evidence" but that the evidence of the
applicant was not convincing for the tribunal
something it was entitled to conclude. In short, on
all the evidence before the tribunal, it was not
satisfied by the applicant that an increased risk
justifying the BFOR had been proven. This Court
cannot interfere with such a conclusion when it is
based on evidence, which it was.
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. (See also to the same effect as Bhinder,
Canadian Pacific Ltd. v. Canada (Canadian
Human Rights Commission), [1988] 1 F.C. 209
(C.A.).)
The third criticism of the decision is that it took
into account certain of Rosin's individual charac
teristics in determining whether a BFOR had been
established. It is true that, in cases of direct dis
crimination, the characteristics of any particular
individual are not relevant. Either the provision
applies to all persons in the group or to none of the
individuals in it. The question in this direct dis
crimination case is not whether the individual in
question can do the job, but whether a monocular
parachutist can do the job. While the tribunal
certainly mentioned the attributes of Mr. Rosin,
and took comfort in them, it did not rely on them
in holding that the standard was not a BFOR. A
close reading of the reasons indicates that the
tribunal would have found that the regulation was
an improper generalization in any event. After all,
people wearing glasses were allowed to enter the
course, even though it was shown that some of
them removed their glasses when jumping. Others
were said to close their eyes when they jumped.
Further, even if the rule excluding monocular
people were considered valid in the abstract, it did
not hold true for one-eyed persons with the charac-
teristics, vision and adaptability of people like
Rosin, rather than Rosin himself.
The tribunal had sufficient evidence before it to
come to the factual conclusions it did and to make
the finding it did on the BFOR issue. Hence, it is
not open to this Court to interfere.
4. Remedies
Among the remedies provisions of the Canadian
Human Rights Act, are subsections 53(2), 53(3)
and section 54 which read:
53....
(2) If, at the conclusion of its inquiry, a Tribunal finds that
the complaint to which the inquiry relates is substantiated, it
may, subject to subsection (4) and section 54, make an order
against the person found to be engaging or to have engaged in
the discriminatory practice and include in that order any of the
following terms that it considers appropriate:
(a) that the person cease the discriminatory practice and, in
order to prevent the same or a similar practice from occur
ring in the future, take measures, including
(i) adoption of a special program, plan or arrangement
referred to in subsection 160) or
(ii) the making of an application for approval and the
implementing of a plan pursuant to section 17,
in consultation with the Commission on the general purposes
of those measures;
(b) that the person make available to the victim of the
discriminatory practice, on the first reasonable occasion,
such rights, opportunities or privileges as, in the opinion of
the Tribunal, are being or were denied the victim as a result
of the practice;
(c) that the person compensate the victim, as the Tribunal
may consider proper, for any or all of the wages that the
victim was deprived of and for any expenses incurred by the
victim as a result of the discriminatory practice; and
(d) that the person compensate the victim, as the Tribunal
may consider proper, for any or all additional cost of obtain
ing alternative goods, services, facilities or accommodation
and for any expenses incurred by the victim as a result of the
discriminatory practice.
(3) In addition to any order that the Tribunal may make
pursuant to subsection (2), if the Tribunal finds that
(a) a person is engaging or has engaged in a discriminatory
practice wilfully or recklessly, or
(b) the victim of the discriminatory practice has suffered in
respect of feelings or self-respect as a result of the practice,
the Tribunal may order the person to pay such compensation to
the victim, not exceeding five thousand dollars, as the Tribunal
may determine.
54. (1) Where a Tribunal finds that a complaint related to a
discriminatory practice described in section 13 is substantiated,
it may make only an order referred to in paragraph 53(2)(a).
(2) No order under subsection 53(2) may contain a term
(a) requiring the removal of an individual from a position if
that individual accepted employment in that position in good
faith; or
(b) requiring the expulsion of an occupant from any prem
ises or accommodation, if that occupant obtained such prem
ises or accommodation in good faith.
The tribunal made an order granting four reme
dies, as follows [at page D/6257]:
1. The complainant be placed in a program which is similar to
that which he had taken, preferably the cadet course, at the
next available time, or a similar course which would be suitable
to him and the respondent, and he is to be given the opportunity
to take either the full course or the partial course, and we
further order that any rules which would restrict a person
merely by having monocular vision be rewritten so as to
eliminate the situation from reoccurring, and in particular the
visual, geographical and occupational rules that would prevent
a person with one eye from taking a parachute course be
modified or suspended forthwith.
2. Although the complainant has not specifically indicated that
he wishes any compensation, the Tribunal awards the complai
nant for loss and hurt feelings pursuant to s. 53(3)(b) the
amount of $1,500.
3. There will be a calculation of interest under the Interest Act
which interest will be calculated from a date thirty days from
the date of this judgment.
4. It is also ordered that all expenses relating to transportation,
food, uniform and other requirements will be paid for by the
respondent, as well as the fact that the Tribunal orders that the
respondent is not to, in its manner of placing the complainant
in the parachutist course, delete in any way, shape or form the
number of persons who would ordinarily come from the geo
graphical area from where the complainant came, nor from any
other area and the complainant is to be given a fair and
reasonable opportunity to meet all tests and not receive any
further discrimination.
The applicant challenges two of them. First, it is
contended that there was no jurisdiction to make
the order allowing interest as was done under
number 3. I do not accept this submission. While
there is no specific provision expressly granting
human rights tribunals the power to give interest,
it is included in the power granted to "order the
person to pay such compensation to the victim, not
exceeding five thousand dollars, as the Tribunal
may determine." (see subsection 53(3)). Such
awards for interest have been ordered frequently
by human rights tribunals. (See, for example,.
Canadian Armed Forces v. Morgan, Sept. 14, 1990
(C.H.R.T.); Boucher v. Canada (Correctional
Service) (1988), 9 C.H.R.R. D/4910; Chapdelaine
v. Air Canada (1987), 9 C.H.R.R. D/4449; Hinds
v. Canada (Employment and Immigration Com
mission) (1988), 10 C.H.R.R. D/5683.) Specifical
ly, interest has been allowed on awards for hurt
feelings and loss of self-respect. (See, for example,
Kearns v. P. Dickson Trucking Ltd. (1988), 10
C.H.R.R. D/5700; Fontaine v. Canadian Pacific
Ltd. (1989), 11 C.H.R.R. D/288.)
Courts, including this Court, have held that
interest may be awarded in other similar contexts,
under the concept of "compensation", for to deny
it would be to fail to make the claimant whole,
especially in these days of high interest rates. (See
Minister of Highways for British Columbia v.
Richland Estates Ltd. (1973), 4 L.C.R. 85
(B.C.C.A.) (expropriation case); Re Westcoast
Transmission Co. Ltd. and Majestic Wiley Con
tractors Ltd. (1982), 139 D.L.R. (3d) 97
(B.C.C.A.), (commercial arbitrator); Canadian
Broadcasting Corp. v. C.U.P.E., [1987] 3 F.C. 515
(C.A.), per MacGuigan IA., (Canada Labour
Code).)
Therefore, there is no reason to interfere with
this remedy, which is available to human rights
tribunals pursuant to the wording of the statute as
interpreted in the jurisprudence.
Whereas no complaint is made in relation to
most of paragraph 4, the applicant also argues that
part of paragraph 4 was beyond the jurisdiction of
the tribunal when it ordered the respondent [at
page D/6257]:
... not to, in its manner of placing the complainant in the
parachutist course, delete in any way, shape or form, the
number of persons who would ordinarily come from the geo
graphical area from where the complainant came, nor from any
other area ....
I am not persuaded that this aspect of the order
was beyond the jurisdiction of the tribunal. It is
sensible to cover this matter so as to ensure that no
one is displaced as a result of the order of the
tribunal. If this were not so ordered, there might
follow an inadvertent violation of paragraph
54(2)(a) in that someone accepted for the course
next year might be removed from a position
accepted in good faith, something which is prohib
ited by the Act.
I am of the view that the order of the tribunal
should be affirmed and the application dismissed.
HEALD J.A.: I concur.
STONE J.A.: I agree.
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.