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
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
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
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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