Lee v. Canada ( Human Rights Commission )
A-437-96
MacGuigan J.A.
25/4/97
5 pp.
Appeal from trial judgment ((1996), 112 F.T.R. 98) dismissing appeal from Review Tribunal's decision Human Rights Tribunal applied correct legal definition of bona fide occupational requirement (BFOR) under Canadian Human Rights Act, s. 15(a) in finding employer's standards in respect of fitness constituted BFOR-Appellant deregistered by employer as longshore worker-Appellant's disability, resulting from childhood accident, including speech impediment, awkward gait, lack of coordination in left extremities-Several work incidents raising questions as to productivity, ability to work safely-Appellant submitting BFOR established by impressionistic evidence without any or sufficient evidence of scientific or medical nature-Appeal dismissed-Although McIntyre J. in Ontario Human Rights Commission et al. v. Borough of Etobicoke, [1982] 1 S.C.R. 202 lauded scientific evidence as to BFORs and warned of dangers of impressionistic evidence, also stated far from saying in all cases some "scientific evidence" necessary-Kind of evidence required matter of circumstances-Appellant alleging Trial Judge erred in failing to find description of him as "misfit" by Cahan, person directly responsible for dismissal, discriminatory-Counsel alleging Trial Judge also effectively calling appellant "misfit"-Cahan's remark made in response to Commission investigator's question, "Which other employee had been deregistered because they constitute a safety risk?"-Replied, "We did not deregister that many, because there are not many misfits in our work force"-Although indirect allegation appellant "misfit", not made insultingly to his face and in fact made long after employed-Not made in relation to statutory ground of discrimination viz. disability-Cahan testifying never aware during time of appellant's employment, relevant time for discriminatory discharge, even had disability-Use of "misfit" in relation to safety risks rather than to disabled-Trial Judge correctly holding "misfit" not showing employers prejudiced against Lee-To be discriminatory under Act, word must indicate prejudicial state of mind in relation to disability-Not doing so here because of Cahan's lack of knowledge of appellant's disability and wording of question replied to-Trial Judge's one reference to appellant as "misfit" must be read in same nonpejorative sense in which describes himself as misfit in some contexts-Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 15(a).