By Mari-Len De Guzman
In a rare intervention on a judicial review, the divisional court overturned an arbitrator’s award that the employer had failed to accommodate the paramedic’s disability to the point of undue hardship. In his conclusion, the court said, “the arbitrator’s decision is not defensible on either the facts or the law.”
The case arose when the County of Simcoe removed an ambulance paramedic, David Rogers, from his position because of a medical condition that affected his visual acuity. A regulation under the Ambulance Act requires that all ambulances in Ontario be staffed by two paramedics who are both able to drive the ambulance and attend to patients. The paramedic in the case was unable to maintain his Class F licence, which was required for paramedics, because of his diagnosis with Choridal Melanoma, a condition that affected his visual acuity.
The paramedic filed a grievance through his union, the Ontario Public Service Union. At the arbitration hearing, before M.R. Gorsky, it was concluded that the provisions of the Ontario Human Rights Code applied to the Ambulance Act regulation and that the failure of the regulation to provide for the possibility of reasonable accommodation amounted to substantive discrimination and a contravention of the Human Rights Code.
The arbitrator went on to state that there was a duty to accommodate the paramedic, despite his lack of qualifications to drive the ambulance because of his visual acuity problem, and that to do so would not cause the employer undue hardship. Arbitrator Gorsky held that the non-accommodating standard, that all paramedics be able to drive an ambulance, was enacted in good faith to maintain health and safety standards in the operation of the ambulance service. He also accepted the employer’s argument that the rule was rationally connected to the performance of the job of an ambulance paramedic.
The critical issue for the arbitrator was whether or not the requirement that all ambulance paramedics be able to drive was reasonably necessary to achieve the employer and the provincial regulator’s goal of providing the highest level of health and safety to those served by ambulance paramedics.
In the result, arbitrator Gorsky held that there had been a contravention of the collective agreement and ordered that the employer return the paramedic to a position in an “attend only” capacity, despite his inability to meet the vision requirements for a Class F licence, which was required for paramedics in a regulation under the Ambulance Act.
However, County of Simcoe began an application for judicial review to the Divisional Court. Justice Lax, writing for a unanimous three-member panel of the Divisional Court, confirmed that the standard, on the judicial review, was a standard of reasonableness that provided deference to the arbitrator’s decision, which is less narrow than a full right of appeal. The court went on to reference the test for establishing accommodation of disabilities set down by the Supreme Court of Canada in Meiorin. The Divisional Court confirmed that once a complainant has established that a workplace standard is prima facie discriminatory, which was conceded by the employer in this case, the Meiorin decision requires the onus of proof to shift to the defendant employer to prove, on a balance of probabilities:
“(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job; (2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legislative work-related purpose; and (3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.”[/em]
The court reviewed the evidence that was summarized by arbitrator Gorsky indicating that failing to have two ambulance paramedics who could both drive, could have dire health and safety consequences for patients and the public. This limitation would effect response time adversely, resulting in serious risk to the sick and injured who required both attendants and prompt transportation to hospital emergency wards. It would also likely cause stress for the single paramedic with the Class F licence who would be the exclusive driver in a two person, paramedic staffed ambulance.
The court held that although the arbitrator appeared to accept the uncontradicted evidence offered by the employer of the concerns for the health and safety of patients and the public, arbitrator Gorsky ultimately ignored the evidence and he concluded that there was no basis for the workplace standard that it was not reasonably necessary for the health and safety of patients and the public.
The court went on to review a number of cases with respect to protecting the rights of workers to be free from discrimination on the basis of disability, and the duty of an employer to accommodate to the point of undue hardship.
Then, the court stated, “an essential element of the job of a paramedic is to transport patients as quickly as possible. It was accepted by the arbitrator and admitted before us that there will be delays if a paramedic is unable to drive. Extending human rights protection to situations that will result in placing the lives of others at risk flies in the face of logic…accordingly, the decision of the arbitrator dated July 2, 2007 is set aside.”
The County of Simcoe decision by the court puts the brakes on one driver ambulance paramedics since it compromises health and safety standards. What was noticeably absent from the analysis of the court, however, was the health and safety of the co-worker of the ambulance paramedic who did have a Class F driver’s licence, and potential work-related stress and risk that a single driver in a two man ambulance paramedic crew may have on that worker.
Further, and somewhat surprisingly, there was no reference to the employer’s duties under the Occupational Health and Safety Act generally, and there was no reference to section 2(2) of the Occupational Health and Safety Act specifically. That provision indicates that the Occupational Health and Safety Act prevails over other provincial acts and regulations. That provision, which has rarely been considered by the court, is ironically very similar to a provision in the Ontario Human Rights Code that claims that its provisions prevail over other acts.
Those provisions, which arguably are critical for the consideration not only by the arbitrator, but also by the Divisional Court on the judicial review, would only continue to contradict each other, but raise serious questions about the provincial government’s relative priority in the competing issues of workplace health and safety and human rights.
The end-result of this case is a refreshing application of the importance of occupational health and safety, extending to patients and the public. While the values and substantive provisions of the Ontario Human Rights Code are important in a modern, democratic, multi-cultural society, in the writer’s opinion, they ought not to be enforced at the expense of putting workers, patients and the public at risk of harm, injury or death.
This decision should give some support to employers who are challenged by competing interests of human rights, on the one hand, and the health and safety of workers, patients and the public on the other.
Norm Keith leads the national OHS practice at Gowling Lafleur Henderson LLP. You can reach him at (866) 862-5787 ext.85699 or by email at Norm.Keith@gowlings.com
Mari-Len De Guzman is the former editor of Canadian Occupational Safety magazine and www.cos-mag.com.