View cases - Stewart McKelvey

[75] I can see no justification for scrutinizing qualifying and job standards differently. Theconcern about barring people from employment or services on the basis of unfoundedassumptions or stereotypes about their personal characteristics applies to the jobs or servicesthemselves as much as it does to the pre-conditions for them. Put another way, if a jobrequirement is not really necessary, why should it be allowed to have the effect of discriminatingagainst a group any more than an equally unjustifiable qualifying requirement?[76] I think a more persuasive reading of the case law and a more principled basis fordistinguishing between the two kinds of requirements is that the nature of the requirement is animportant part of the context in which the respondent’s justification for it must be assessed. Forexample, where the requirement is part of the job itself, an accommodation may have differentand more serious implications for co-workers than altering a qualifying requirement. Aqualifying requirement is necessarily more distant from the objective of the requirement than isthe job requirement itself. In this sense, it may be that there are generally more possiblealternative qualifying requirements that would still ensure that the purpose behind the rule is metthan there are requirements intrinsic to the activity or job itself. But the nature of therequirement or standard is not the only relevant consideration.[77] The context in which the Court reviewed the respondent’s actions in Grismer wasinformed both by the fact that a qualifying standard was in issue and by the fact that the nature ofthe accommodation requested was that Mr. Grismer be given an opportunity to prove he met theexisting standard. Had Mr. Grismer requested that he be exempted from the existing visualacuity standard, different considerations would have come into play.[78] Returning to the main question, has Skeena shown that exempting Mr. Pannu from itsrequirement that Recaust Operators perform shut downs would be completely incompatible withits purpose of eliminating or minimizing dangers from the equipment during a gas emergency?Alternatively, if not completely incompatible with its purpose, would such an exemption imposeundue hardship on Skeena?[79] Relevant contextual factors in this determination include the nature of the standard inissue and the nature of the accommodation requested. Here, the standard is part of the job itself:it concerns an emergency procedure that is not ordinarily performed, but for which the Recaust19