Large v. Stratford (City) et al., (1995) 86 O.A.C. 81 (SCC)

• Judge: Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: February 27, 1995
• Jurisdiction: Canada (Federal)
• Citations: (1995), 86 O.A.C. 81 (SCC)

Large v. Stratford (1995), 86 O.A.C. 81 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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The Corporation of the City of Stratford, the Stratford Police Department and the Board of Police Commissioners (appellants) v. Albert Large and the Ontario Human Rights Commission (respondents)

(24004)

Indexed As: Large v. Stratford (City) et al.

Supreme Court of Canada

Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.

October 19, 1995.

Summary:

A police officer was forced to retire at age 60. The officer filed a complaint with the Ontario Human Rights Commission. The commission appointed a board of inquiry that found that the mandatory retirement of age 60 was not a bona fide occupational requirement for police officers. The employer appealed.

The Ontario Divisional Court, in a decision reported 56 O.A.C. 10, dismissed the appeal. The employer appealed.

The Ontario Court of Appeal, in a decision reported 68 O.A.C. 136, dismissed the appeal. The employer appealed.

The Supreme Court of Canada allowed the appeal.

Civil Rights - Topic 985

Discrimination - Employment - Duty to accommodate - A board of inquiry estab­lished under the Ontario Human Rights Code held that a policy of mandatory retirement of police officers at age 60 was not a bona fide occupational requirement (BFOR) - The board found that the risk the policy sought to address could be avoided by individual accommodation - The Supreme Court of Canada held that the policy was a BFOR - The court held that the board erred in incorporating a duty to accommodate into the objective branch of the test of a BFOR - The objective branch was justified by scientific evidence and there was no duty to accommodate individuals once the BFOR was established - See paragraphs 27 to 37.

Civil Rights - Topic 998

Discrimination - Employment - Excep­tions, bona fide occupational requirement - The Supreme Court of Canada stated that the test for a bona fide occupational re­quirement (BFOR) consisted of a subjec­tive test and an objective test - The sub­jective element may be established by evidence that the employer honestly believed that the requirement was neces­sary for the safe performance of the work - In some circumstances the subjective test can be satisfied when, in addition to satis­fying the objective test, the employer establishes that the rule or policy was adopted in good faith for a valid reason and without any ulterior purpose that would be contrary to the purposes of the Code - See paragraphs 21 to 22.

Civil Rights - Topic 998

Discrimination - Employment - Excep­tions, bona fide occupational requirement - A board of inquiry established under the Ontario Human Rights Code held a policy in a collective agreement that required police officers to retire at age 60 was not a bona fide occupational requirement (BFOR) - The Supreme Court of Canada held that the policy was a BFOR - The court discussed the subjective branch of the test of a BFOR - The court held that the employer was not required to establish the employer's sincerely held belief that the policy was necessary for the safe per­formance of the job - The subjective branch was satisfied, where the policy was adopted in good faith and without ulterior motives - See paragraphs 18 to 26.

Civil Rights - Topic 998

Discrimination - Employment - Excep­tions, bona fide occupational requirement -[See Civil Rights - Topic 985 ].

Cases Noticed:

Human Rights Commission (Ont.), Dunlop, Hall and Gray v. Borough of Etobicoke, [1982] 1 S.C.R. 202; 40 N.R. 159, refd to. [para. 9].

Human Rights Commission (Ont.) and Bates v. Zurich Insurance Co., [1992] 2 S.C.R. 321; 138 N.R. 1; 55 O.A.C. 81, refd to. [para. 15].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1, refd to. [para. 15].

University of British Columbia v. Berg, [1993] 2 S.C.R. 353; 152 N.R. 99; 26 B.C.A.C. 241; 44 W.A.C. 241, refd to. [para. 15].

Canadian National Railway Co. v. Bhinder and Canadian Human Rights Commis­sion, [1985] 2 S.C.R. 561; 63 N.R. 185, refd to. [para. 28].

Central Alberta Dairy Pool v. Human Rights Commission (Alta.), [1990] 2 S.C.R. 489; 113 N.R. 161; 111 A.R. 241, refd to. [para. 28].

Human Rights Commission (Sask.) and Craig v. Saskatoon (City) and Saskatoon Professional Fire Fighters Union, Local 80, [1989] 2 S.C.R. 1297; 103 N.R. 161; 81 Sask.R. 263, refd to. [para. 29].

Statutes Noticed:

Human Rights Code, S.O. 1981, c. 53, sect. 41(3) [para. 8].

Human Rights Code, R.S.O. 1990, H-19, sect. 24(2) [para. 17].

Human Rights Code, R.S.O. 1980, c. 340, sect. 4(1)(g), sect. 4(6) [para. 7].

Ontario Human Rights Code - see Human Rights Code.

Counsel:

John W.T. Judson and Sandra L. Coleman, for the appellants;

Kim Twohig and Elaine Atkinson, for the respondent the Ontario Human Rights Commission.

Solicitors of Record:

Lerner & Associates, London, Ontario, for the appellants;

Attorney General of Ontario, Toronto, Ontario, for the respondent the Ontario Human Rights Commission.

This case was heard on February 27, 1995, before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada. On October 19, 1995, the judgment of the court was delivered in both official languages and the following opinions were filed:

Sopinka, J. (Lamer, C.J.C., La Forest, Gonthier, Cory, Iacobucci, Major, JJ., concurring) - see paragraphs 1 to 39;

L'Heureux-Dubé, J., concurring (Mc­Lachlin, J., concurring) - see para­graphs 40 to 58.