The BC Human Rights Tribunal has decided to hear a complaint from an on-call firefighter in Chilliwack about his forced retirement at age 60 (news reports claim Mr. Shellard is now 63 years old).
The case is significant for at least two reasons. First, it is a challenge to mandatory retirement in a job that is generally recognized to have extreme physical demands. Second, the BCHRT refused to be bound by findings of the Ontario Human Rights Tribunal in similar cases.
The decision in Shellard v. The City of Chilliwack recognized the demands on firefighters, the research showing that firefighters suffer cardiac problems at a significantly greater rate than the general population and that the risk of cardiac arrest increases after age 60, and the high risk to themselves, other firefighters and the public if they suffer a cardiac arrest at a fire scene. But the Tribunal was not prepared to dismiss Shellard’s complaint without a full hearing.
Chilliwack sought to rely on the findings of these cases heard by the Ontario Human Rights Tribunal on the medical issues. In particular, Chilliwack relied on the finding in Ontario that there was a materially increased incidence and risk of cardiac arrest for firefighters, that there was no satisfactory individual testing to determine the risk of cardiac arrest, and that mandatory retirement at age 60 was therefore justified. The BCHRT was not prepared to simply follow the Ontario findings and dismiss the complaint on that basis.
If the matter proceeds to a full hearing, we can expect to see the latest medical evidence, both about a firefighter’s risk of cardiac arrest and about the efficacy of individual testing that may allow a firefighter to establish his or her ability to carry on service past age 60.
On that last point, a challenge for Chilliwack will be to explain its policy that will allow individual firefighers to continue past age 60 based on fitness testing while arguing that individual testing is not effective.
Meanwhile, the McCormick case on mandatory retirement from a law firm partnership is going to the Supreme Court of Canada. We previously commented on that case here.