Large v. Stratford (City) et al., (1993) 68 O.A.C. 136 (CA)

• Judge: Morden, A.C.J.O., Grange and Austin, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 22, 1993
• Jurisdiction: Ontario
• Citations: (1993), 68 O.A.C. 136 (CA)

Large v. Stratford (1993), 68 O.A.C. 136 (CA)

MLB headnote and full text

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

(C14641)

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

Ontario Court of Appeal

Morden, A.C.J.O., Grange and Austin, JJ.A.

December 22, 1993.

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 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; 9 O.R.(3d) 104, dismissed the appeal. The employer appealed.

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 985

Discrimination - Employment - Duty to accommodate - A board of inquiry estab­lished under the Ontario Human Rights Code held that mandatory retirement of police officers at age 60 was not a bona fide occupational requirement - The Ontario Divisional Court interpreted the board's reasons as meaning that, if there is a reasonable alternative to a policy of direct discrimination in employment, a policy is not reasonable and therefore not a bona fide occupational requirement - The Ontario Court of Appeal declined to express a final opinion where it was not necessary, but stated that it was inclined to agree with the Divisional Court's analysis - See paragraphs 18 to 19.

Civil Rights - Topic 998

Discrimination - Employment - Excep­tions, bona fide occupational requirement -Age, mandatory retirement - A police officer was forced to retire at age 60 - A board of inquiry appointed under the Ontario Human Rights Code found that mandatory retirement at age 60 was not a bona fide occupational requirement - The Ontario Court of Appeal affirmed the decision.

Civil Rights - Topic 7115

Provincial human rights legislation - Prac­tice - Judicial review, standard of review - A police officer was forced to retire at age 60 - The Ontario Divisional Court affirmed the finding of a board of inquiry appointed under the Ontario Human Rights Code that retirement at age 60 was not a bona fide occupational requirement - The employer challenged the curial deference to the board's fact findings - The Ontario Court of Appeal stated that the deference which the courts should give to findings of fact of human rights tribunals is based chiefly on their function and role as the tribunal of first instance which sees and hears the witnesses, both lay and expert - See paragraphs 5 to 16.

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. 2].

Etobicoke Firefighters case - see Human Rights Commisssion (Ont.), Dunlop, Hall and Gray v. Borough of Etobicoke.

Dickason et al. and Human Rights Com­mission (Alta.) v. University of Alberta, [1992] 2 S.C.R. 1103; 141 N.R. 1; 127 A.R. 241; 20 W.A.C. 241, refd to. [para. 5].

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. 6].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1, refd to. [para. 6].

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. 6].

Statutes Noticed:

Courts of Justice Act, R.S.O. 1990, c. C-43, sect. 134(1)(a) [para. 16].

Federal Court Act, R.S.C. 1985, c. F-7, sect. 28 [para. 9].

Human Rights Code, R.S.O. 1970, c. 318, sect. 4(6) [para. 2].

Human Rights Code, S.O. 1981, c. 53, sect. 41(3) [para. 7].

Human Rights Code, R.S.O. 1990, c. H-19, sect. 24(1)(b) [para. 2]; sect. 42(3) [paras. 5, 7].

Individual Rights Protection Act, R.S.A. 1980, c. I-2, sect. 33(2) [para. 5].

Counsel:

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

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

This case was heard on September 15 and 16, 1993, before Morden, A.C.J.O., Grange and Austin, JJ.A., of the Ontario Court of Appeal. On December 22, 1993, the Court delivered the following judgment for the court of appeal.