Ontario Human Rights Commission, Dunlop, Hall and Gray v. Borough of Etobicoke, (1982) 40 N.R. 159 (SCC)

• Judge: Laskin, C.J.C., Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer, JJ.
• Court: Supreme Court (Canada)
• Case Date: February 09, 1982
• Jurisdiction: Canada (Federal)
• Citations: (1982), 40 N.R. 159 (SCC);40 NR 159;3 CHRR 781;[1982] SCJ No 2 (QL);1982 CanLII 15 (SCC);[1982] 2 SCR 789;13 ACWS (2d) 1;132 DLR (3d) 14;1982 CanLII 218 (SCC);[1982] CarswellOnt 730;1982 CanLII 217 (SCC);JE 82-193;[1982] ACS no 2;[1982] 2 SCR 791;[1982] 1 SCR 202

HRC v. Etobicoke (1982), 40 N.R. 159 (SCC)

MLB headnote and full text

Ontario Human Rights Commission, Dunlop, Hall and Gray v. Borough of Etobicoke

Indexed As: Ontario Human Rights Commission, Dunlop, Hall and Gray v. Borough of Etobicoke

Supreme Court of Canada

Laskin, C.J.C., Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer, JJ.

February 9, 1982.

Summary:

Two firefighters employed by the Borough of Etobicoke filed a complaint under the Ontario Human Rights Code that their compulsory retirement at age 60 in accordance with the collective agreement contravened s. 4(1) of the Code. A board of inquiry allowed the complaint after finding that the employer failed to establish that the compulsory retirement age of 60 was a bona fide occupational qualification and requirement for firefighters. The Ontario Divisional Court allowed the employer's appeal. The subsequent appeal by the Ontario Human Rights Commission and the two firefighters was dismissed by the Ontario Court of Appeal. The Commission and the firefighters appealed.

The Supreme Court of Canada allowed the appeal and restored the decision of the board of inquiry.

Administrative Law - Topic 6209

Judicial review - Statutory appeals - Scope of review - Trial or hearing de novo - Under s. 14d of the Ontario Human Rights Code concerning appeals from the decisions of a board of inquiry the appeal court was empowered to review the evidence and substitute findings - The Ontario Divisional Court, affirmed by the Ontario Court of Appeal, allowed an appeal from a board of inquiry and substituted its findings for those of the board - The Supreme Court of Canada restored the board's decision on the ground that the board's assessment of the evidence was correct - See paragraphs 12 to 14.

Civil Rights - Topic 984

Discrimination - Employment - Contracting out or waiver of statutory rights - The Supreme Court of Canada held that the protection against discrimination in s. 4(1) of the Ontario Human Rights Code could not be circumvented by the terms of a collective agreement - See paragraphs 17 to 19.

Civil Rights - Topic 995

Discrimination - Employment - Age - Retirement - The Supreme Court of Canada held that the compulsory retirement age of 60 in a firefighters' collective agreement was contrary to the protection against age discrimination in s. 4(1) of the Ontario Human Rights Code, where the employer failed to establish that the compulsory retirement age was a bona fide occupational qualification and requirement for firefighters - See paragraphs 1 to 18.

Civil Rights - Topic 998

Discrimination - Employment - Exceptions - Bona fide occupational requirement or qualification - Human Rights Code, R.S.O. 1970, c. 318, s. 4(6) - The Supreme Court of Canada held that the burden of proving that a compulsory retirement age for firefighters was a bona fide occupational qualification and requirement was on the employer - The court held that a compulsory retirement age of 60 in a firefighters' collective agreement was a violation of s. 4(1) of the Code, where the employer failed to discharge the burden - See paragraphs 1 to 18.

Contracts - Topic 6585

Illegal contracts - Waiver or contracting out of statute law - When not permitted - The Supreme Court of Canada held that the Ontario Human Rights Code was an embodiment of public policy and its provisions could not be contracted out of - See paragraphs 7 to 19.

Cases Noticed:

Re Ontario Human Rights Commission and City of North Bay (1977), 17 O.R.(2d) 712, affd. 21 O.R.(2d) 607, refd to. [para. 3].

Equitable Life Assurance Society of the United States v. Reed, [1914] A.C. 587, refd to. [para. 19].

Re Estate of Charles Millar, Deceased, [1938] S.C.R. 1, refd to. [para. 19].

Fender v. Mildmay, [1937] 3 All E.R. 402, refd to. [para. 19].

Rex v. Roma, [1942] 3 W.W.R. 525, refd to. [para. 19].

Outen v. Steward and Grant and the City of Winnipeg, [1932] 3 W.W.R. 193, refd to. [para. 19].

Dunn v. Malone (1903), 6 O.L.R. 484, refd to. [para. 19].

Hodgson v. Greyhound Lines Incorporated, 499 F.(2d) 859, refd to. [para. 16].

Little v. Saint John Shipbuilding Drydock Co. Ltd. (1980), 1 C.H.R.R. 1, refd to. [para. 16].

Statutes Noticed:

Human Rights Code, R.S.O. 1970, c. 318, preamble, sect. 4(1), sect. 4(6), sect. 14d [para. 5].

Authors and Works Noticed:

Halsbury's Laws of England (3rd Ed.), vol. 36, 673 [para. 19].

Halsbury's Laws of England (4th Ed.), vol. 9, 289 [para. 421] [para. 19].

Counsel:

J. Polika, Q.C., for the appellants;

Douglas K. Gray and R. Ross Dunsmore, for the respondent.

This case was heard on May 13, 1981, at Ottawa, Ontario, before LASKIN, C.J.C., DICKSON, BEETZ, ESTEY, McINTYRE, CHOUINARD and LAMER, JJ., of the Supreme Court of Canada.

On February 9, 1982, MCINTYRE, J., delivered the following judgment for the Supreme Court of Canada: