Suppression firefighters employed by the city applied for judicial review of the Human Rights Tribunal of Ontario’s summary dismissal of their complaint of discrimination based on the city’s requirements that suppression firefighters retire at age 60. The tribunal, relying on earlier decision, found that mandatory retirement at age 60 for suppression firefighters was a bona fide occupational requirement. The tribunal concluded that the mandatory retirement standard was adopted in good faith to protect health and safety. The court dismissed the application for judicial review, noting that the exception the employer might be required to offer in individual accommodation was a narrow one. The applicants brought forward no medical evidence nor did it suggest an alternative testing regime capable of eliciting medical evidence. Thus the procedural duty to accommodate the firefighters was not triggered.

[2015] O.J. No. 435

2015 ONSC 236

Ontario Superior Court of Justice

K.E. Swinton, J. Mackinnon and T.R. Lederer JJ.

January 30, 2015

The applicants, suppression firefighters including two platoon chiefs challenged a requirement that suppression firefighters employed by the city of Mississauga retire at age 60, claiming that it amounted to discrimination on the basis of age. The Human rights Tribunal of Ontario dismissed their application after a summary hearing, concluding that the applicants had no reasonable prospect of success. In reaching this decision, the tribunal relied on its earlier decision in Espey v. London (City) 2008 HRTO 412, reached after a nine day hearing, which held that mandatory retirement at age 60 for suppression firefighters is a bona fide occupational requirement and does not violate the code. In Espey, the tribunal held that mandatory retirement was rationally connected to the work of a firefighter necessary in order to protect the health and safety because there was an increasing risk of cardiac events with age and a higher risk of cardiac disease after age 60. That risk was even greater for firefighters in emergency situations. The standard was adopted in good faith to protect health and safety and was reasonably necessary to ensure the health and safety of firefighters. To accommodate individual firefighters would result in undue hardship to the employer. While there was a possibility of individual exceptions, it would only be in narrow circumstances based on the individual risk of cardiac events and medical evidence suggesting that specific individual’s risk of cardiac events was extremely low or negligible. In such circumstances, accommodation may be required.

In the present case, the applicants did not contest that the mandatory retirement age was a bona fide occupational requirement but argued that they should have been accommodated through the city entering into a dialogue about the possibility of individual testing. Instead the city responded by offering accommodations only to positions other than suppression firefighters which the applicants refused. The tribunal dismissed the complaint, finding that the application had no reasonable prospect of success.

The court upheld the tribunal’s decision and dismissed the application for judicial review. All parties agreed that the standard of review was reasonableness. The court found that the tribunal had recently relied on its decision in Espey. The applicants had not brought forward medical evidence to show that they were at low or negligible risk of a cardiac event or indicate evidence would be available or suggest a positive testing regime that would be capable of a listing such specific evidence. In such circumstances, the tribunal reasonably concluded that the procedural duty to accommodate was not triggered. Also, to require the city to investigate and develop an individual testing regime in advance of such particularized evidence from the applicants would render the mandatory retirement age regime meaningless.