Ontario Human Rights Commission et al. v The Borough of Etobicoke

Ontario Human Rights Commission et al. v Etobicoke
Citation	Ontario Human Rights Commission et al. v Etobicoke, [1982] 1 SCR 202
Appellants	The Ontario Human Rights Commission, Bruce Dunlop, Harold E. Hall, Vincent Gray
Respondent	The Borough of Etobicoke
Year	1982.
Court	Supreme Court of Canada
Country	Canada
Issue	How do you determine if direct discrimination is justified?

Facts

There was an agreement in place stating that firefighters had to retire at the age of 60. This was agreed upon by the city and union and was thought to be beneficial to both parties. However, the two claimants in this case (Hall and Gray) do not want to retire when they are 60 and claim that this is discrimination on the ground of age. The Ontario Human Rights Tribunal ruled for the claimants but the decision was overturned at Ontario Divisional Court and upheld in the Ontario Court of Appeal because they accepted that a bona fide occupational requirement had been

Issue

1. How do you determine if direct discrimination is justified?

Decision

Appeal allowed, claimants reinstated and allowed to work as long as they are able (up to 65).

Reasons

This case deals with direct discrimination and sets out the test used to see if there is a bona fide occupational requirement in cases of direct discrimination (before being superceded by the Meiorin test). The Supreme Court states that there is obviously a prima facie case of discrimination here, as the claimants are under 65 and are not permitted to work because of their age, however this is not an absolute statement – there are some situations where you can deny employment on the basis of age. The onus shifts to the respondent to prove that their decision to prevent the men from working is because they do not satisfy a bona fide occupational requirement (being under 60 in this case). To determine if there is a bona fide occupational requirement in direct discrimination you use the two-part McKay test:

1. was the standard passed in good faith (not for discriminatory reasons)? [subjective test]
2. is the distinction reasonably necessary to the job/service (scientific evidence not required, but must be on the balance of probabilities)? [objective test]

In this case there is no indication that the respondents acted in bad faith – therefore the pass the first part of the test. However, they cannot pass the second test because they cannot prove on a balance of probabilities that their age requirement is necessary for the work. The court also holds that you cannot contract out of human rights legislation.

Ratio

• The McKay test is the test used to determine if a case of direct discrimination can be justified as a bona fide occupational requirement before the Meiorin case established the unified test.
• The burden of proof is always on the balance of probabilities and the bona fide occupational requirement onus is on the respondent after the claimant proves a prima facie case of discrimination.
• You cannot contract out of human rights legislation.