Schut v. Canada ( Attorney General )
T-584-95
Wetston J.
2/10/96
9 pp.
Application for judicial review of Canadian Human Rights Commission's dismissal of applicant's discrimination complaint against employer-Applicant employee of Transport Canada, visually impaired and requesting transfer to position of Assistant Marine Controller-Transfer refused on grounds lacked necessary certification and unlikely to satisfy visual acuity standards for position-Department asserting bona fide occupational requirement (BFOR) that employee filling position satisfy both requirements-Applicant alleging discrimination on basis of disability contrary to Human Rights Act, s. 7-Commission dismissing complaint on basis visual acuity and certification rules reasonable and justifiable, given job requirements-In order for reviewing court to interfere with discretionary decision, must be satisfied discretion exercised in bad faith, not in accordance with rules of procedural fairness, and/or reliance placed on irrelevant considerations-Central issue whether sufficient evidence to support Commission's finding of reasonable and justified BFOR-Commission's decision based on investigator's report-Report challengeable if can be shown investigator neither thorough nor neutral-If not thorough, additional evidence must be of fundamental nature and could not be brought to Commission's attention through other means-Respondent not satisfying test for BFOR-Employer must prove requirements reasonably necessary for adequate performance of work involved and no reasonable alternatives to establishment of such restrictions-To establish necessity, employer must show employee would pose safety risk related to economic harm, harm to fellow employees or harm to general public-Proof of necessity must be concrete and scientific, not merely impressionistic-No evidence here of physical limitations of persons with visual acuity below standard or how limitations relate to job-Application allowed; matter returned to Commission for reconsideration-Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 7.