Simcoe (County) v. Ontario Public Service Union, Local 911 et al., (2009) 257 O.A.C. 337 (DC)

• Judge: J. Wilson, Hill and Lax, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: December 04, 2009
• Jurisdiction: Ontario
• Citations: (2009), 257 O.A.C. 337 (DC)

Simcoe v. OPSU (2009), 257 O.A.C. 337 (DC)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. DE.078

Corporation of the County of Simcoe (applicant) v. Ontario Public Service Union and its Local 911 (respondents) and The Crown in Right of Ontario (intervenor)

(398/08)

Indexed As: Simcoe (County) v. Ontario Public Service Union, Local 911 et al.

Court of Ontario

Superior Court of Justice

Divisional Court

J. Wilson, Hill and Lax, JJ.

December 4, 2009.

Summary:

Rogers filed a grievance against his employer for his removal from his position as an ambulance paramedic as a result of a condition that affected his visual acuity. The arbitrator ordered the employer to return Rogers to a paramedic position in an "attend only" capacity, despite his inability to meet the vision requirements for a Class F licence, which was required for paramedics by the regulations under the Ambulance Act and the Highway Traffic Act. The arbitrator concluded that the provisions of the Ontario Human Rights Code applied to the Ambulance Act Regulation and that the failure of the Regulation to provide for the possibility of reasonable accommodation amounted to substantive discrimination. He concluded that there was a duty to accommodate Rogers as an attend only ambulance paramedic despite his lack of qualification to drive the ambulance, and that doing so would not cause undue hardship. The employer sought judicial review. The Attorney General for Ontario intervened to support the employer's request for an order setting aside the arbitrator's decision. At the beginning of the hearing, the employer withdrew its challenge to the arbitrator's finding that the Code applied to the Ambulance Act Regulation and conceded that the arbitrator made no error in law in his interpretation of the Regulation and the Code. The remaining issue was whether the arbitrator's finding that Rogers' employment in an attend only paramedic position could be accommodated without undue hardship was reasonable.

The Ontario Divisional Court allowed the application and set aside the arbitrator's decision. The arbitrator's finding that Rogers' employment in an attend only paramedic position could be accommodated without undue hardship was unreasonable.

Civil Rights - Topic 985

Discrimination - Employment - Duty to accommodate - The Ambulance Act Regulation required that all ambulances in Ontario be staffed by two paramedics who could both drive the ambulance and attend patients - An ambulance paramedic (Rogers) no longer met the vision requirements for a Class F licence, which paramedics were required to have by the regulations under the Ambulance Act and the Highway Traffic Act - Rogers grieved his removal from his position as an ambulance paramedic - An arbitrator ordered the employer to return Rogers to a paramedic position in an "attend only" capacity - The arbitrator concluded that the provisions of the Ontario Human Rights Code applied to the Ambulance Act Regulation and that the failure of the Regulation to provide for the possibility of reasonable accommodation amounted to substantive discrimination - He concluded that there was a duty to accommodate Rogers as an attend only ambulance paramedic despite his lack of qualification to drive the ambulance, and that doing so would not cause undue hardship - The Ontario Divisional Court allowed the employer's judicial review application and set aside the arbitrator's decision - The arbitrator's finding that Rogers' employment in an attend only paramedic position could be accommodated without undue hardship was unreasonable - An essential element of the job of a paramedic was to transport patients as quickly as possible - There would be delays if a paramedic was unable to drive - Extending human rights protections to situations that would result in placing the lives of others at risk flew in the face of logic - The arbitrator's decision was not defensible on either the facts or the law.

Civil Rights - Topic 998

Discrimination - Employment - Exceptions - Bona fide or reasonable occupational requirement or qualification - [See Civil Rights - Topic 985 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 11].

Public Service Employee Relations Commission (B.C.) v. British Columbia Government and Service Employees' Union, [1999] 3 S.C.R. 3; 244 N.R. 145; 127 B.C.A.C. 161; 207 W.A.C. 161, refd to. [para. 13].

Superintendent of Motor Vehicles (B.C.) et al. v. Council of Human Rights (B.C.), [1999] 3 S.C.R. 868; 249 N.R. 45; 131 B.C.A.C. 280; 214 W.A.C. 280, refd to. [para. 13].

Entrop et al. v. Imperial Oil Ltd. (2000), 137 O.A.C. 15; 50 O.R.(3d) 18 (C.A.), refd to. [para. 13].

Multani v. Commission scolaire Marguerite-Bourgeoys et al., [2006] 1 S.C.R. 256; 345 N.R. 201; 2006 SCC 6, refd to. [para. 25].

R. v. Hothi, [1985] 3 W.W.R. 256; 33 Man.R.(2d) 180 (Q.B.), affd. [1986] 3 W.W.R. 671; 35 Man.R.(2d) 159 (C.A.), refd to. [para. 25].

Nijjar v. Canada 3000 Airlines Ltd., [1999] C.H.R.D. No. 3, refd to. [para. 25].

Human Rights Commission (Ont.) et al. v. Board of Education of Peel (1990), 12 C.H.R.R. D/364 (Ont. Bd. of Inquiry), affd. (1991), 47 O.A.C. 234; 3 O.R.(3d) 531 (Div. Ct.), refd to. [para. 25].

Jeppesen v. Ancaster (Town), [2001] O.H.R.B.I.D. No. 1, refd to. [para. 27].

Human Rights and Citizenship Commission (Alta.) et al. v. Kellogg Brown & Root (Canada) Co. (2007), 425 A.R. 35; 418 W.A.C. 35; 2007 ABCA 426, refd to. [para. 30].

Counsel:

Ronald M. Snyder, for the applicant;

Richard Blair, for the respondents;

Sara Blake and David Strang, for the intervenor.

This application was heard at Toronto, Ontario, before J. Wilson, Hill and Lax, JJ., of the Ontario Divisional Court. Lax, J., delivered the following decision on December 4, 2009.