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MacDonald v. Prince Edward Island School Unit No. 1

In the matter of the Human Rights Act, R.S.P.E.I. 1988, Cap. H-12 Between Leo A. MacDonald, complainant, and Regional Administrative School Unit No. 1, respondent, and Prince Edward Island Human Rights Commission

Prince Edward Island Board of Inquiry Under the Human Rights Act E.S. Murphy

Heard: January 6-10 and 13, 1992.
Decision: March 2, 1992.
Addendum: March 25, 1992.
(102 paras.)

Appearances:
 

John Maynard, for the complainant.
David H. Jenkins, Q.C. and Rosemary Scott, for the respondent.
Paul Michael, for the Human Rights Commission.
Patrick Aylward, for the Board of Inquiry.


DECISION

1      This Board of Inquiry was appointed November 14, 1990, pursuant to Section 25 of the Human Rights Act, R.S.P.E.I. 1988, Cap.  H-12, to investigate and seek settlement of the complaint of Leo A. MacDonald.

2      The specific terms of reference were as follows:
 

To make full inquiry into the complaint of Leo A. MacDonald and without limiting the generality of the foregoing, the Board of Inquiry shall:

(a) have all the powers of a commissioner under the Public Inquiry Act;
(b)

give full opportunity to all parties to present evidence and make representations;

(c)

determine whether Mr. MacDonald's complaint against the Regional Administrative Unit #1 is supported by a reasonable preponderance of the evidence;

(d)

after considering the evidence submitted, report its recommendations to the Human Rights Commission and the Minister of Labour.

BACKGROUND

3      The Complainant alleges that he was discriminated against on the basis of his age, by the Respondent, in his employment as a School Bus Driver.  The Respondent acknowledges that it made a decision in May of 1990 not to rehire Mr. MacDonald because he was then over 65 years of age; however, the Respondent maintains that it did not discriminate against Mr. MacDonald because, the Respondent says, requiring school bus drivers to be less than 65 years of age is a genuine occupational qualification within the meaning of Section 6(4)(a) of the Human Rights Act.

4      Sections 6(1) and 4(a) of the Human Rights Act read:
 

"No person shall refuse to employ or to continue to employ any individual on a discriminatory basis or discriminate in any term or condition of employment.

(4)

This section does not apply to, (a) a refusal, limitation, specification or preference based on a genuine occupational qualification;"

ISSUE

5      Is the requirement that school bus drivers be less than 65 years of age, a genuine occupational qualification within the meaning of Section 6(4)(a) of the Human Rights Act?

BURDEN OF PROOF

6      As to the burden of proof on the Respondent, Section 14(2) of the P.E.I. Human Rights Act reads:
 

"The onus of proving that a qualification is a genuine qualification is on the employer or other person asserting that the qualification is a genuine qualification."

Section 26(4) of the Human Rights Act reads:
 

"Where the matter referred to the Board of Inquiry is not settled between the parties and the Board find a complaint is supported by a reasonable preponderance of the evidence, the Board shall report its recommendation to the Commission and a course which ought to be taken with respect to the complaint" (Board's underlining).

7      In addition Mr. Justice McIntyre in Ontario Human Rights Commission v. Borough of Etobicoke, 132 D.L.R. (3d) 15, a February, 1982 decision of the Supreme Court of Canada dealing with whether requiring firefighters to be less than sixty years of age was a bona fide occupational qualification, at page 19, says as follows:
 

"The only justification which can avail the employer in the case at bar, is the proof, the burden of which lies upon him, that such compulsory retirement is a bona fide occupational qualification and requirement for the employment concerned.  The proof, in my view, must be made according to the ordinary civil standard of proof, that is upon a balance of probabilities."

8      The Board interprets the above quoted provisions of the Human Rights Act and the quotations from Mr. Justice McIntyre to be saying the same thing, and that is, that the Respondent in this matter must establish evidence proving the probable existence of the facts required to support the defence of genuine occupational qualification.

TEST TO DETERMINE EXISTENCE OF A GENUINE OCCUPATIONAL QUALIFICATION

9      The Board notes that in a later decision, that being the City of Saskatoon et al. v. Saskatchewan Human Rights Commission handed down December 21, 1989, 65 D.L.R. (4th) 481, the Supreme Court of Canada held that the words "bona fide occupational qualification" and "reasonable occupational qualification" were equivalent.  As to genuine occupational qualification, the Board notes that at page 17 of the Etobicoke decision, the Supreme Court of Canada approved the following:
 

"The meaning of bona fide that seems most consistent with this objective would be "real" or "genuine" ..."

10      Therefore the Board concludes that the adjectives "bona fide", "reasonable", and "genuine", as used to modify "occupational qualification", have the same meaning.

11      Returning to the Etobicoke case, Mr. Justice McIntyre, writing for the Court, sets out at pages 19 and 20 what is now recognized as a classic statement in this area of law, and which statement is referred to in all subsequent cases:
 

"To be a bona fide occupational qualification and requirement a limitation, such as a mandatory retirement at a fixed age, must be imposed honestly, in good faith and in the sincerely held belief that such limitation is imposed in the interests of the adequate performance of the work involved with all reasonable dispatch, safety and economy, and not for ulterior or extraneous reasons aimed at objectives which could defeat the purpose of the Code.

In addition, it must be related in an objective sense to the performance of the employment concerned, in that it is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public."

12      This quotation of Mr. Justice McIntyre sets out the subjective and objective tests that an employer must satisfy to succeed on the defence of genuine occupational qualification.

THE SUBJECTIVE TEST AS TO THE EXISTENCE OF A GENUINE OCCUPATIONAL QUALIFICATION

13      That the employer's sincerely held belief must have a reasonable foundation to it is set out by the Supreme Court of Canada in City of Saskatoon, referred to above, at page 490 when Mr. Justice Sopinka, for the Court, states:
 

"The subjective requirement obliges the employer to establish that the employer had a sincerely held belief that the requirement was reasonably necessary for the adequate performance of the work and was not adopted for any ulterior or extraneous reasons."

14      Therefore to determine whether or not the Respondent satisfies the subjective test, one must ask if the evidence adduced establishes that the Respondent probably sincerely believed that mandatory retirement of school bus drivers at age 65 was reasonably necessary for the adequate performance of the work with all reasonable dispatch, safety and economy.

15      As early as August 29, 1974, the Respondent had adopted as policy that one over 65 years of age could not drive the Respondent's school buses.  Many of the Respondent's policy statements were introduced into evidence.  The Respondent's policies are entitled either "Board Formulated" which relates to the Unit #1 School Board or "Government Formulated".  The explanation was that "Government Formulated" Unit #1 School Board policies result from the Respondent adopting, as School Board Policy, legislation that has been passed by government.  This particular policy was Government Formulated policy and was also restated April 2, 1986, at a time when, I believe, there was a general update of policies.

16      The prohibition against hiring bus drivers over the age of 65 years of age existed in regulation 4.21(3) of the regulations pursuant to the School Act of the Province of Prince Edward Island, reading as follows:
 

"A person may enter into an annual contract with a Board to drive a school bus if he is over 60 years of age but not more than 65 years of age..."

17      Mr. MacDonald became 65 years-of age on July 12, 1989; the Respondent concluded that the 89-90 school year started July 1, 1989 and therefore, at the start of the 8990 school year, Mr. MacDonald was not yet 65, and he was therefore rehired under a one-year contract signed in July of 1989 and expiring June 30, 1990, (being Exhibit R-1).  Mr. Harvey McEwen, the Business Superintendent for the last fourteen years with the Respondent, testified that the Respondent anticipated a challenge if Mr. MacDonald was not rehired due to his age, and therefore the Respondent did not wish, as part of that challenge, to deal with the technicality that Mr. MacDonald may not have been rehired at a time when he was still under 65 years of age.

18      In other words, given that the school year started July 1, 1989 and Mr. MacDonald was not yet 65, and had the Respondent refused to hire him at that time, then there was the technical argument that they were refusing to hire him even before he became 65, and this is the reason why the Respondent took the actions it did to ensure that it was clear that when Mr. MacDonald was not hired in May 1990 he was over 65 years of age.

19      As stated the contract between the Respondent and Mr. MacDonald was to expire June 30, 1990, when Mr. MacDonald would clearly be over 65 years of age.  The Personnel Committee of the Respondent met April 20, 1990, as its role is to make recommendations to the Respondent's Board.  The minute of the meeting of the Personnel Committee of April 20, 1990, was entered as Exhibit R-30 and reads as follows:
 

"A letter has been received from Leo MacDonald requesting to drive for an additional year.  He is 66 years old. The Board allowed him to drive this school year. According to the School Act he is ineligible to drive.

Moved by Lorraine Robinson that in accordance with the School Act, that Leo MacDonald not be offered a contract for the 1990-91 school year.

Seconded by Shirley Murphy.  Motion Carried."

20      Further a letter from the Respondent to Mr. MacDonald of April 23, 1990, entered as Exhibit C-1, reads as follows:
 

"We acknowledge receipt of your letter dated April 17, 1990, indicating your intention to continue driving a school bus for the 1990-91 school year.

Your request will be discussed at the May 9, 1990, board meeting, however, we want to point out to you that according to the School Act, you would not qualify to drive a school year as you will be 66 in July 1990.

You will be advised of the Board's decision following the May 9th meeting."

21      Entered as Exhibit R-29 was a minute of the Respondent's Board meeting of May 9, 1990, reading as follows:
 

"It was moved, seconded and carried that in accordance with the School Act, a 65 year old bus driver not be offered a contract for the 1990-91 school year."

22      At this stage it may be helpful to refer to Section 1(2) of the P.E.I. Human Rights Act:
 

"This Act shall be deemed to prevail over all other laws of this Province and such laws shall be read as being subject to this Act."

23      Therefore given that the Human Rights Act prohibits discrimination on the basis of age, and that the regulation quoted above under the School Act would appear to allow discrimination on the basis of age i.e. prohibiting the hiring of school bus drivers once they attain the age of 65 years, then, according to the Human Rights Act, the School Act regulation conflicts with the Human Rights Act, and therefore the regulation under the School Act is subject to the Human Rights Act and is of no assistance in defending an allegation of discrimination on the basis of age.

24      Mr. McEwen made representations to the Board at their May 9, 1990, meeting prior to their decision not to rehire Mr. MacDonald.  Mr. McEwen indicated that he presented to the Board the following problems with drivers over the age of 65:
 
(1)

that after the age of 60 medical examinations are required once a year by provincial legislation;

(2)

that the collective agreement leaves no control to the Respondent as to which of its school bus drivers go on the extra-circular trips which often involve unfamiliar areas;

(3)

that there is limited medical technology on Prince Edward Island to examine some of the things that are required to be known to determine one's ability to drive;

(4)

weather conditions in the Respondent's area;

(5)

the requirement of physical fitness for evacuating handicapped children from the bus.

25      However Mr. McEwen testified that he also made the Board aware of the statute laws of the Province and specifically the regulation under the School Act prohibiting the Respondent from hiring a school bus driver over the age of 65 years.

26      On cross-examination, Mr. McEwen testified that he felt the Respondent was compelled to follow the regulation, and that if the Respondent didn't follow this regulation, then the Respondent would be violating the statute law of this Province.  In addition, there was apparently some discussion at the May 9, 1990, meeting of possible liability of the Board and/or individual members of the Board if they did not comply with the School Act regulation prohibiting the hiring of school bus drivers over the age of 65.

27      In addition, Mr. McEwen testified as follows:
 
(1)

that in his mind there was no other option, but to not re-hire Mr. MacDonald because of the School Act regulation;

(2)

at the May 9, 1990, meeting it was expressed by some members of the Respondent's Board that if there wasn't a cutoff age for employment for school bus drivers then drivers could drive indefinitely, and if one was able to drive up to 70 - 75 years of age would they, the Respondent Board wondered, be getting into high risk categories;

(3)

neither Mr. McEwen nor anyone else from the Respondent obtained an opinion from Dr. Cyril Moase, the medical advisor to the Respondent, as to the relationship of safety and a person over 65 years of age driving a school bus, if any;

(4)

that the fact of the statute of law in this Province prohibiting hiring over 65 was a major factor at the Board meeting;

(5)

that this regulation was foremost at the Board meeting;

(6)

again the Board members expressed concern about drivers driving indefinitely;

(7)

there was no professional opinion sought as of May 1990 re the relationship, if any, between aging and safety as far as driving a school bus.

28      When the Board of Inquiry asked Mr. McEwen what would have happened at the Respondent's Board meeting of May 9, 1990, if the School Act did not prohibit hiring over the age of 65, Mr. McEwen responded that the Respondent would have had to do a lot more research and come to the Board with a lot more detail and medical research, but that this wasn't needed at that time because they had to comply with the School Act.

29      The Respondent's Board, which made the decision on May 9, 1990, consisted of fifteen members and none of these members testified.  However, as indicated above, we do have the minutes of the Personnel Committee meeting, the letter from the Respondent to Mr. MacDonald between the time of the Personnel Committee meeting and the actual Board meeting, and the minutes of the Board meeting itself.  All three documents clearly indicate the reason Mr. MacDonald was not being re-hired was because of the School Act; there is no suggestion in the Minutes of the Personnel Committee meeting nor in the Minutes of the School Board meeting, that Mr. MacDonald was considered by the Respondent to be unable to safely drive a school bus strictly based on his age.

30      In addition, Mr. MacDonald was over 65 years of age when he was driving the school bus from September, 1989, to the end of June, 1990.

31      Therefore this Board of Inquiry concludes that the Respondent never addressed, head on, the issue of whether it was reasonably necessary, in the interests of safety, to have a policy that prohibited the hiring of drivers over 65 years of age.  This Board of Inquiry suggests that it is clear from the above references to the evidence that the Respondent's decision not to rehire Mr. MacDonald was made due to the Respondent's perception that they would be violating the law of the Province of Prince Edward Island if they did keep him on after the age of 65.  This Board of Inquiry finds that the only reference to age and safety was the generalized concern of the Respondent that if there wasn't a cutoff age, that the Respondent would be faced with drivers 70 years of age and upwards driving their school buses.

32      There is a complete absence of any evidence to support a reasonable foundation for the Respondent to perceive a connection between the specific age 65 and safety, as of May 9, 1990.

33      In other words, the Respondent does not satisfy the subjective test as to the existence of a genuine occupational qualification because the evidence does not support that the Respondent probably believed that not hiring over 65 was reasonably necessary for the adequate performance of the work.

34      The Board is going to go on to consider whether the Respondent's evidence satisfies the objective test, and wishes to note here that this present finding on the subjective test in no way suggests that the Respondent or its Board members, or its Business Superintendent, or any of its employees did anything wrong or improper or set out in any way to harm Mr. MacDonald or to deny him of his rights.  This Board is of the strong opinion that the Respondent was caught in a difficult situation with the law being, perhaps, confusing to lawyers and certainly confusing to the lay members of the Board re the priorities between the Human Rights Act and the School Act.  One can easily imagine that a lay board of a school unit is almost unconsciously going to pay more attention to the School Act, which specifically governs their affairs, then to the relatively recently enacted Human Rights Act under which there have been no decisions as to age and safety in this Province to that time.  In addition this Board believes that all of the Respondent's lay witnesses were of the upmost integrity and honesty and have the safety of the children in that unit at heart.

35      This finding by this Board is simply that, if anything, the Respondent jumped the gun a little too soon, given the requirements in this area of the law as set down by the Supreme Court of Canada.

36      One notes that certainly when the Board obtained the November, 1990, report of Dr. Antlitz, then the Board was in a position to reasonably believe that there was a relationship between the specific age 65 and safety re driving a school bus.

37      This finding that the Board did not pass the subjective test should not be taken to suggest that there is an overly onerous burden upon employers in similar situations; for example, had there been evidence that Mr. McEwen called Dr. Moase on the telephone and Dr. Moase had advised Mr. McEwen that there was a relationship between age 65 and the safe ability to drive a school bus then, in this Board's opinion, that would have been sufficient evidence to conclude that the Respondent passed the subjective test.

38      In addition, had the Respondent testified that it inferred from the legislation prohibiting drivers to drive over 65 that there must be a safety reason for so doing then, in this Board's opinion, that also would have been sufficient to conclude that the Board satisfied the subjective test.

39      And, again, to be clear, this Board concludes that certainly when the Respondent was in receipt of Dr. Antlitz's report dated November, 1990, the Board would have passed the subjective test at that time.

OBJECTIVE TEST OF THE EXISTENCE OF A GENUINE OCCUPATIONAL QUALIFICATION

40      Mr. Justice McIntyre in Etobicoke, sets out the objective test as to the existence of a genuine occupational qualification, at page 20, as follows:
 

"It (a mandatory retirement at a fixed age) must be related in an objective sense to the performance of the employment concerned, in that it is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees, and the general public."

41      In the City of Saskatoon case, Supreme Court of Canada decision of December 21, 1981, referred to above, Mr. Justice Sopinka repeats the above quotation from Mr. Justice MacIntyre in Etobicoke and then Mr. Justice Sopinka goes on to say at page 489:
 

"This test (i.e. the objective test) obliges the employer to show that the requirement, although it cannot necessarily be justified with respect to each individual, is reasonably justified in general application.... In the limited circumstances in which this defence applies, it is not the individual characteristics that are determinative but general characteristics reasonably applied.  It is important to bear in mind that we are speaking of a defence to a charge of discrimination.  If an employer were required to show that each employee at age 60 is physically incapable of doing the work, there would be no necessity of a defence of reasonable occupational qualification or requirement.  The employer in the circumstances to which I refer would have negated discrimination."

42      At page 490 of that case Mr. Justice Sopinka says as follows:
 

"The objective standard requires the employer to establish that, apart from his belief, the requirement is in fact reasonably necessary." (Board underlining.)

43      And at page 492 Mr. Justice Sopinka says the following re individual testing:
 

"In my opinion, these cases point the way to the proper approach with respect to individual testing.  While it is not an absolute requirement that employees be individually tested, the employer may not satisfy the burden of proof of establishing the reasonableness of the requirement if he fails to deal satisfactorily with the question as to why it was not possible to deal with employees on an individual basis by, inter alia, individual testing."

44      In addition to dealing with the reasonableness of the requirement for performance of the relevant job, and with whether or not individuals can be tested to avoid a discriminatory rule applying to the group, the third matter that needs to be addressed, in the objective test as to the existence of a genuine occupational qualification, is the area of risk.

45      In Etobicoke Mr. Justice McIntyre, at page 20, stated as follows:
 

"An employer may in certain types of employment, particularly in those affecting public safety such as that of airline pilots, train and bus-drivers, police and fireman, consider that the risk of unpredictable individual human failure involved in continuing all employees to age 65 may be such that an arbitrary retirement age may be justified for application to all employees."

46      And then at page 21 of that decision Mr. Justice McIntyre states the following, which has been frequently quoted in subsequent cases, as to risk:
 

"In an occupation where, as in the case at bar, the employer seeks to justify the retirement in the interest of public safety, to decide whether a bona fide occupational qualification and requirement has been shown, the Board of Inquiry and the Court must consider whether the evidence adduced justifies the conclusion that there is sufficient risk of employee failure in those over the mandatory retirement age to warrant the early retirement in the interests of safety of the employee, his fellow employees and the public at large." (Board's underlining.)

47      The question is, of course, how much risk of employee failure must be established on a balance of probabilities before the employer satisfies the objective test.

48      In Canadian Pacific Limited v. Canadian Human Rights Commission, a June 16, 1987, decision of the Federal Court of Appeal, at 76 N.R. 385, there is extensive discussion of this matter of risk.  At paragraph 9 on page 388 of that decision, the following is found:
 

"The Tribunal [i.e. the equivalent to this Board of Inquiry] decided that the requirement that a trackman be not an insulin dependent diabetic was not a bona fide occupational requirement.  After referring to the decision of the Supreme Court of Canada in Etobicoke, the Tribunal concluded that, even if the refusal to employ unstable diabetics might be justified, the risks involved in employing a stable diabetic like Mr. McMan were not sufficiently great to warrant the refusal of Canadian Pacific Limited to employ him."

49      In addition, at page 391 of that decision it quotes the following from the Tribunal's decision, being the decision under attack:
 

"Society must accept some added risk in exchange for the benefits conferred upon the disabled in enhancing their freedom to truly achieve equality of opportunity. Moreover, all of society generally benefits indirectly in the enhancement of core values in respect of such a minority group."

50     At page 392 the following is found:
 

"In the applicant's submission, these passages of the decision disclose the fundamental error, namely, that a bona fide occupational requirement relating to safety must necessarily increase safety substantially and that an employer's requirement that merely eliminates a small risk of serious damage cannot qualify as a bona fide occupational requirement.

In support of this argument, the applicant refers to the decision of the Supreme Court of Canada in Canadian National v. Bhinder (1985) 2 S.C.R. 561 where, it is said, a requirement that reduced risk of injury by a small amount was recognized as a bona fide occupational requirement.

I find merit in that argument.

The decision of the Supreme Court of Canada in Etobicoke is authority for the proposition that a requirement imposed by an employer in the interests of safety must, in order to qualify as a bona fide occupational requirement, be reasonably necessary in order to eliminate a sufficient risk of damage.  In Bhinder, on the other hand, the Supreme Court upheld as a bona fide occupational requirement one which, if not complied with, would expose the employee to a greater likelihood of injury - though only slightly greater.  The affect of those decisions, in my view, is that, a fortiori, a job related requirement that, according to the evidence, is reasonably necessary in order to eliminate a real risk of a serious damage to the public at large must be said to be a bona fide occupational requirement.

The decision under attack, it seems to me, is based on the generous idea that the employers and the public have the duty to accept and assume some risk of damage in order to enable disabled persons to find work.  In my view, the law does not impose any such duty on anyone."

51      Therefore, this Board concludes that, as to satisfying the objective test as to the requirement of a genuine occupational qualification, the evidence must establish, on a balance of probabilities, the following:
 
(1)

that requiring one to be less than 65 years of age to be a school bus driver is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public;

(2)

that it is not possible to screen out school bus drivers over 65 years of age to remove the "unsafe drivers";

(3)

this is really part of (1) but with a slightly different emphasis, that requiring school bus drivers to be less than 65 years of age is reasonably necessary to eliminate a real risk of serious damage to the public.

52      Dr. Antlitz was, by agreement of all counsel, declared to be an expert witness, entitled to give opinion evidence in the area of diseases of the heart and diseases of the blood vessels.  Dr. Antlitz has been head of the cardiology department and the department of electro cardiography at the Mercy Hospital in Baltimore, Maryland, from 1962 to 1985, and in private practice since 1985.  In addition, Dr. Antlitz's twelve page curriculum vitae was introduced into evidence which outlined his training, academic and hospital appointments, his numerous publications and t.v. appearances as to his area of expertise.

53      He testified that the coronary arteries are those which serve the heart muscle, supplying blood and nutrients. He noted that the heart pumps faster as we work hard or get excited.  Coronary artery disease is a narrowing of the arteries due to deposits in the arteries.  The narrowing limits the blood flow through the artery to the heart muscle. A complete obstruction results in a heart attack.  There are 6 to 10 main coronary arteries into the heart.  Coronary disease of the arteries frequently starts when one is in their twenties, due to a build up of cholesterol and usually this progresses and gets worse as one gets older.

54      The factors that accelerate this worsening, or to put it another way, this narrowing of the coronary arteries are:
 
(1)

high cholesterol;

(2)

cigarette smoking;

(3)

diabetes;

(4)

family history;

(5)

age.

55      Many studies reveal that age 55 is a threshold of sorts and that after age 55 there is a significant risk of coronary artery heart disease.

56      Indeed, those persons in the 55 to 64 age group are fourteen times more likely than those in the 35 to 40 age group to have coronary heart disease and those 65 and over are thirty times more likely to have it than those in the 35 to 44 age group.

57      Further, he testified that in Prince Edward Island the rate of heart disease is forty percent higher than in the rest of Canada and, further in his evidence, Dr. Antlitz testified that there is more coronary artery heart disease on Prince Edward Island, per population, than anywhere else in the North American continent.

58      He stated that by age 65 well over fifty percent of the men have at least fifty percent obstruction in one or more of the branches or coronary arteries leading into the heart.  Generally speaking, females have less of the disease prior to the reaching age 65, but once they reach age 65 they catch up quickly.

59      Dr. Antlitz went on to testify that heavy vigorous effort in a life threatening situation would expose an individual to a heart attack and, in his view, the risk of a heart attack due to this coronary heart disease is excessive at age 65 and over.

60      Dr. Antlitz testified that mandatory retirement at age 65 for school bus drivers, in his opinion, was reasonable, and reasonably necessary to the efficient and economical performance of the job without endangering the safety of the employee and the public.

61      To support this Dr. Antlitz referred to his view that in a crisis or emergency a strenuous physical effort may be required by a school bus driver.  He referred specifically to shovelling snow off the roof of the bus in the morning prior to leaving the driver's home and this being done in the context of having to meet a schedule for picking up the children.  In addition, he referred to the fact that if the bus went off the road or was stuck in snow that the driver may well be the only adult there.  He emphasized that shovelling snow is very heavy work and suggested that there exists five to eight pounds of weight at each throw, being the weight of the snow and the shovel, and frequently one can throw fifteen shovel loads a minute and therefore the amount of weight being lifted gets very heavy, very quickly and this would be compounded by cold weather.

62      He referred to the possibility of the driver having to evacuate students in an accident, that there would be a lot of work to do this, and that there might be the fear of fire and that there would be an adrenalin response in the driver and he would go beyond his or her normal exertion.  He particularly emphasized the danger of heavy exertion in a life or death situation.

63      He said his main points were the dangers involved with heavy snow shovelling and the dangers in a life threatening situation following a bus crash.

64      On cross examination Dr. Antlitz acknowledged that it may well be an infrequent event for the heavy shovelling of the snow and/or the occurrence of a serious bus crash.  He maintained that a school bus driver has to be able to do it and that the frequency in the doctor's mind was not important because it is the bus driver's job to do a certain thing when and if it becomes necessary and, therefore, they must have the ability to do it.

65      Also, on cross examination Dr. Antlitz testified that the combination of strenuous activity in a life and death situation with people over age 65 was, in his opinion, potent.

66      The Board of Inquiry put to Dr. Antlitz quotations from a case in which his evidence or evidence such as he was putting forward here was not accepted, and his response was that that other case ignored the nature of the work and one of the main foundations of his testimony was the fact of the activity of a school bus driver and what he might be called upon to do in the event of an emergency.

67      Dr. Antlitz also testified that there were no tests available to determine which drivers over 65 would be more at risk to suffer a heart attack from coronary heart disease.

68      Given Dr. Antlitz's emphasis on the potential danger of snow shovelling, this Board was invited to examine eight school buses parked in the lot of the school close to where the hearing was being held to determine if there were shovels on the buses.  There were no shovels on the eight buses examined.

69      This Board concludes that this fact does not diminish the strength of Dr. Antlitz's evidence overall given that there is some requirement for snow shovelling in the morning and getting up and cleaning off the roofs of the buses and perhaps more significantly, Dr. Antlitz's evidence as to the potent effect of one over 65 being called upon to perform vigorous physical exertion in a life and death situation as the result of a bus crash remains uncontradicted and stands.

70      Dr. Waller was, by agreement of counsel, qualified as an expert witness, entitled to give opinion evidence in the area of medical impairment and aging as related to driving risks and also in the area of the distribution and causes of diseases and/or health problems within a community.

71      In addition, a lengthy curriculum vitae was introduced into evidence outlining Dr. Waller's being a professor of the geriatrics unit at the Department of Medicine at the University of Vermont since September, 1979, and the many bodies to which he has been a consultant, the honours he has received, and the names of the approximate one hundred articles he has published.

72      Dr. Waller testified that three things occur as we get older:
 
(1)

the disuse syndrome which results from lack of exercise and/or loss of muscle strength and stamina and this can be overcome by proper exercise;

(2)

the normative changes of aging which begin about age 55;

(3)

increase in medical conditions as one gets over age 55.

73      Dr. Waller honed in on the normative changes of aging and testified that about age 55 sophisticated testing in laboratories has determined certain changes that occur in most of us.  One area was in a person's vision and here Dr. Waller testified that there was night blindness, the intensifying of the affect of glare which would take the eyes longer to recover from, and the lessening of contrast sensitivity, and the decrease in vision fields due to overhang of the skin at the eyes, and the fact that the lens of the eye gets yellow as one gets older instead of the clear colour it has when one is younger, and this yellowing of the lens of the eye results in an increased difficulty in distinguishing colours.

74      Dr. Waller also testified that the same laboratory tests revealed that older people solve problems as well as younger people if they have enough time; otherwise the older persons' capability to solve problems decreases with age, as does the older person's ability to pay attention to two tasks at the same time.

75      In addition, he testified that the amount of time to respond to something increases, i.e. one's reflexes, and he concluded this aspect by saying that all of these above decrements, as he called them, start about age 55 and we have more of them as we get older and they get more severe as we get older, and that as people get into their sixties almost everyone has one or more of the above so called decrements.

76      Dr. Waller testified that statistics reveal that as people get older they start driving less and they are more fussy about the time, the weather and traffic when they do drive.  When one questions older people as to why they are driving less, they simply respond that they just feel less comfortable in certain environments.  As to the suggestion that older people have more experience and that that experience should compensate for these decrements Dr. Waller responds that the opposite is true; that older people are completely inexperienced with these changes that are going on in their bodies referred to above as decrements.  He referred to various studies, introduced into evidence, indicating the increase in accidents as persons get older and also the increase in their receiving traffic violations as they get older.  Dr. Waller notes that these statistics exist despite the fact that these people are retired, driving less, and driving under conditions that they themselves consider to be most favourable.

77      At one stage in his evidence Dr. Waller broke the task of driving down into four areas:
 
(1)

one has to see something;

(2)

one has to perceive it;

(3)

one has to make a timely and appropriate judgment; and

(4)

the response then has to be timely and appropriate.

78      Then Dr. Waller stated, in his opinion, that age 65 is a reasonable retirement requirement for school bus drivers to ensure the efficient and economical performance of the job without endangering the employee, his fellow drivers and the general public, being specifically the children in the school buses.

79      As to school bus driving in Unit I, Dr. Waller noted that the drivers have to go even if the weather is not ideal and that there is a requirement for extra-curricular trips and late night runs to perhaps unfamiliar areas and in this area of his testimony Dr. Waller noted that older people often do well in their own neighbourhood on roads that they are familiar with, but once outside their neighbourhood can become confused and this is where they end up going the wrong way on one way streets.

80      He noted that on the school bus the children would be present, there would be additional noise, and there would be the requirement that the driver be paying attention to several things at the same time, i.e. driving the bus, the children inside the bus, the traffic, and so on.

81      He made reference to the fact that it takes a greater distance to stop a bus than a car, and referred to studies dealing with actual crash experience of school bus drivers, indicating more accidents as drivers age, and this increase with school bus drivers having accidents in relation to their age occurs despite the fact that in the study referred to, they had medicals twice a year, and that those who had health problems, or who wanted to retire, had already left.

82      As to ability to perform tests to screen out these decrements Dr. Waller's evidence was that presently we have a primitive ability to test for these, and there is really nothing in the works for the general population to be tested in this regard in the next ten years and there is nothing in sight at all for bus drivers to be tested in this regard.

83      As to increased risk, Dr. Waller testified that the 65 and over age group were twice as likely to have an accident as the best performing age group and when you get this result then it is time to, in his opinion, intervene.

84      He concluded his evidence by saying in his view there was a significant risk of drivers crashing over age 65 because they were over age 65.

85      No expert evidence was presented other than that of Dr. Antlitz and Dr. Waller.  The Board wishes to note at this stage that the evidence of Mr. McEwen revealed that there were nine schools in Unit I and that 3,247 students were transported daily on the Respondent's school buses.  That there were 115 trips per year out of the Unit and during the school year prior to the hearing there were 720 late runs, those being trips after activities at the school, i.e. after approximately 5:00 p.m.

86      In addition, there are 66 regular buses in Unit I and there are 52 to 53 students on average per bus.  The average length of a bus route one way is 36 kilometres with the average number of pick up points being 30 to 40.  The average time to travel a bus route and pick up the children is 53 minutes.

87      The oral evidence of Dr. Antlitz and Dr. Waller was supported by graphs, based on various studies, indicating that the risk of a driver having a heart attack and of having a motor vehicle accident, and of violating traffic laws accelerates to age 65 and then these risks increase dramatically as age over 65 increases.

88      The potential consequences of such risks materializing are injury and/or death to a large number of school children.

89      This Board concludes that the Respondent has established, on a balance of probabilities, the following:
 
(1)

that requiring one to be less than 65 years of age to be a school bus driver is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public;

(2)

that it is not possible to screen out school bus drivers over 65 years of age to remove the "unsafe drivers";

(3)

that requiring school bus drivers to be less than 65 years of age is reasonably necessary to eliminate a real risk of serious damage to the public.

90      The Respondent then satisfies the objective test and would satisfy the subjective test on receiving Dr. Antlitz's report.  It follows, in this Board's mind, from this decision, that the Respondent is not required to rehire Mr. MacDonald.  However, in that he was not rehired somewhat prematurely, i.e. before receipt of Dr. Antlitz's report, Mr. MacDonald may be entitled to compensation from when his contract ended in June or July of 1990, till some date probably in the late fall of 1990, when Dr. Antlitz's report was received by the Respondent.  All counsel requested that the Board retain jurisdiction in the event that this Board is called upon by the Minister of Labour to be involved in dealing with any compensation to Mr. MacDonald.

91      The Board will await any further direction from the Minister of Labour in this regard, but expresses the hope that the parties could work this out between themselves.

92      As to procedural recommendations, this Board notes that the procedure followed here in handling Mr. MacDonald's complaint is that mandated by the Human Rights Act.  Similar procedural provisions exist in the Human Rights Act in a number of other provinces.

93      However, this Board suggests that the procedure, although mandated by the present legislation, is wanting in the following respects:
 
(1)

it required the complainant to hire and pay a lawyer to represent the complainant at a six day hearing;

(2)

the Human Rights Commission also hired and paid a lawyer to represent its interest during the six day hearing;

(3)

the Respondent hired and paid lawyers to defend itself at the six day hearing;

(4)

Mr. MacDonald, the complainant, sat through six days of a public hearing listening to evidence that he was a member of a class of persons no longer able to do the job that he had performed for approximately twenty years.

94      The Board recommends that consideration be given to changing the role of the Human Rights Commission, at least in cases where a determination is required to be made as to the existence of a genuine occupational qualification, in either of the following ways:
 
(1)

to allow the Human Rights Commission, properly funded and vigilant in its efforts, to make determinations of genuine occupational qualifications at the request of individuals, employers, interest groups, or on its own initiative.  Due opportunity for representations from the affected parties would be provided and the proceedings would be as informal and inexpensive as the requirement of fairness would permit;

or

(2)

to allow the Human Rights Commission, particularly when its present executive director is a lawyer, to represent complainants before any Boards of Inquiry, thereby avoiding the complainant, from his or her own resources, having to hire and pay counsel.

95      Finally, the Board thanks counsel for the Complainant, for the Human Rights Commission, and for the Respondent for the quality of research in their pre-hearing briefs, their willingness to sit relatively long hours, their courtesy to the Board, and generally for the hard work they put into representing their clients' interest in this matter.

96      A special thank you goes to Mr. Patrick Aylward, counsel to the Board of Inquiry; whether he was arranging timetables for pre-hearing disclosure, resolving pre-hearing issues, making arrangements for the hearing at Mill River, or providing advice and research to the Board on a large number of issues, all was performed with a high degree of dedication and competence.

97      Mr. Aylward's advice was never coloured by what he thought the listener might wish to hear; he simply gives his advice based on his own independent thinking which, of course, is the best way to receive advice.

98      The Board benefited greatly from his presence.

*  *  *  *  *

ADDENDUM TO DECISION

99      Subsequent to the Board's decision or Report of March 2, 1992, the Human Rights Commission has, pursuant to Section 27(1) of the Human Rights Act, R.S.P.E.I. 1988, Cap. H-12, requested clarification of the following underlined statement appearing in a paragraph at page 30, which paragraph reads as follows [Quicklaw note:  Underlining indicated by uppercase text]:
 

"The Respondent then satisfies the objective test and would satisfy the subjective test on receiving Dr. Antlitz's report.  It follows, in this Board's mind, from this decision, that the Respondent is not required to rehire Mr. MacDonald.  HOWEVER, IN THAT HE WAS NOT REHIRED SOMEWHAT PREMATURELY, I.E. BEFORE RECEIPT OF DR. ANTLITZ'S REPORT, MR. MACDONALD MAY BE ENTITLED TO COMPENSATION FROM WHEN HIS CONTRACT ENDED IN JUNE OR JULY OF 1990, TILL SOME DATE PROBABLY IN THE LATE FALL OF 1990, WHEN DR. ANTLITZ'S REPORT WAS RECEIVED BY THE RESPONDENT.  All counsel requested that the Board retain jurisdiction in the event that this Board is called upon by the Minister of Labour to be involved in dealing with any compensation to Mr. MacDonald."

100      The underlined sentence is not a finding, legal or factual, by the Board as to the period of time for which the Complainant may be entitled to compensation.

101      At the hearing it was agreed by all counsel that the Board would not hear evidence nor counsels' representations on the issue of compensation prior to the Board's decision as to whether the Respondent succeeded on the defence of genuine occupational qualification.

102      The underlined statement simply conveys one possible period of compensation; however, when read in the context of the paragraph in which it appears it is clear that any finding by the Board in this regard could only occur subsequent to hearing argument or evidence or both on the issue of compensation.
 
 

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