concerns are real and impossible to avoid.^145 Health and safety concerns cannot be
impressionistic or speculative.^146 Respondents must demonstrate, based on objective
evidence, the nature of the alleged risks to the applicant or others, the severity of the
risks and the probability of the risks. The seriousness of the risk must be considered in
relation to other risks that exist and which people routinely take.^147
- Alleged Discrimination is a Bona Fide Occupational Requirement
When the applicant alleges that a standard, qualification, rule, policy, practice or
procedure is discriminatory or is being applied in a discriminatory way, the “bona fide
occupational requirement” (or “BFOR”) test may apply. The 3-part BFOR test was
developed by the Supreme Court of Canada in Meiorin.^148 First, the employer or
respondent must demonstrate that it adopted the standard for a purpose rationally
connected to the performance of the job or function. Second, the employer or
respondent must establish that it adopted the particular standard in an honest and good
faith belief that it was necessary for the accomplishment of the purpose or goal. Third,
the employer or respondent must establish that the standard is reasonably necessary
for the fulfillment of that legitimate purpose or goal. To demonstrate that a standard is
reasonably necessary, it must be established that it is impossible to accommodate the
claimant without imposing unduehardship upon the employer or respondent.^149
In Hydro-Québec, the Supreme Court clarified the third step of the Meiorin test. Justice
Deschamps found that the Court of Appeal inaccurately interpreted the Meiorin
decision, by requiring that Hydro-Québec establish that it was impossible to
accommodate the complainant's characteristics. Justice Deschamps clarified that the
(^145) Decker v. K & G Pool Products (1990), 12 C.H.R.R. D/87 (BCCHR);Cameron v. Nel-Gor Castle
Nursing Home 146 (1984), 5 C.H.R.R. D/2170 (HRTO).
147 Policy and guidelines on disability and the duty to accommodate, supra note 12 at 35-36.^
Ibid.; on the issue of safety and undue hardship, see: Gordy v. Oak Bay Marine Management
Ltd.,[2000] BCHRTD No. 15 (BCHRT), rev’d [2000] B.C.J. No. 2504 (BCSC), rev’d [2001] B.C.J. No. 1136
(BCCA); see also:Gordy v. Oak Bay Marine Management Ltd. No. 2(2004), 51 C.H.R.R. D/68 (British
Columbia 148 Human Rights Tribunal).
149 Meiorin, supra note 76.^
Ibid. at para. 54.