View cases - Stewart McKelvey

[45] Mr. Pannu alleges that Skeena contravened this section by designating the RecaustOperator as one of the positions responsible for performing an emergency shut down in the eventof a major gas leak, without making any allowance for Mr. Pannu’s inability to wear an SCBAbecause of his beard. The consequence was that Mr. Pannu was removed from his position asRecaust Operator.[46] Whether the discrimination alleged is in the employment context or whether it arises inthe context of providing services to the public, if the treatment in issue can be characterized as abona fide occupational requirement (“BFOR”), it will not contravene the Code. Thus, I mustdetermine whether the WCB’s regulation 14.23 and/or Skeena’s requirement that its RecaustOperators perform emergency shut downs constitute BFORs.[47] The Supreme Court of Canada has interpreted what is a BFOR in the context of claims ofdiscrimination: British Columbia (Public Service Employee Relations Commission) v. BCGSEU,[1999] 3 S.C.R. 3 (“Meiorin”); British Columbia (Superintendent of Motor Vehicles) v. BritishColumbia (Council of Human Rights), [1999] 3 S.C.R. 868 (“Grismer”). The Court hasestablished a three-stage analysis for determining whether a standard or rule is a BFOR(Grismer, para. 20):Once the plaintiff establishes that the standard is prima facie discriminatory, theonus shifts to the defendant to prove on a balance of probabilities that thediscriminatory standard is a BFOR or has a bona fide and reasonable justification.In order to establish this justification, the defendant must prove that:1. it adopted the standard for a purpose or goal that is rationallyconnected to the function being performed;2. it adopted the standard in good faith, in the belief that it isnecessary for the fulfillment of the purpose or goal; and3. the standard is reasonably necessary to accomplish its purpose orgoal, in the sense that the defendant cannot accommodate personswith the characteristics of the complainant without incurring unduehardship.[48] The Complainant concedes that both the WCB and Skeena imposed their respectivestandards in good faith and for purposes rationally connected to the function being performed.Thus, I must determine whether each Respondent has established, on a balance of probabilities,11