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Canadian Judicial Opinions Regarding the Sikh Religious Identity

Pannu v. Skeena Cellulose Inc.

IN THE MATTER OF the Human Rights Code
R.S.B.C. 1996, c. 210 (as amended)
AND IN THE MATTER OF a complaint before the British Columbia Human Rights Tribunal

Between
Darshan Singh Pannu, complainant, and
Skeena Cellulose Inc. and Workers' Compensation
Board of British Columbia, respondents

[2000] B.C.H.R.T.D. No. 56
2000 BCHRT 56

British Columbia Human Rights Tribunal
Vancouver, British Columbia
N. Iyer

Heard: Prince Rupert, B.C., March 27-31, 2000.
Decision: November 20, 2000.
(110 paras.)

Appearances:
Ulf Kristiansen, counsel for the complainant.
Randy J. Kaardal, counsel for the respondent Skeena Cellulose.
Scott Neilsen, counsel for the respondent Workers' Compensation Board of BC.

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REASONS FOR DECISION

INTRODUCTION

1 Darshan Pannu works as a Recaust Operator in a pulp mill operated by Skeena Cellulose ("Skeena"). The recaust area is noisy, smelly, and hot. It can also be dangerous. This is where the poisonous gases from elsewhere in the mill are piped to be burned off in the 2,000-degree recaust kilns. Mr. Pannu is in charge of this area. His job carries a risk that he will have to shut down the recaust area equipment in the event of a poisonous gas leak, remaining behind while others evacuate the area.

2 The Workers' Compensation Board ("WCB") has regulations that require that anyone who may be exposed to poisonous gases to be able to wear a self-contained breathing apparatus ("SCBA") to protect against gas exposure. The regulations also require anyone who might have to wear an SCBA to be clean-shaven. This is because facial hair prevents the SCBA's face-mask from sealing with the person's face and ensuring that the gas is kept out. Skeena requires its Recaust Operators to shut down the recaust equipment in the event of a major gas leak. However, Mr. Pannu cannot do this because he cannot wear an SCBA. He is a Sikh and wears a beard as a tenet of his faith.

3 After the WCB discovered that Mr. Pannu was responsible for performing an emergency shut down in the event of a gas leak, and that he wore a beard, it ordered Skeena to comply with its regulations. Skeena removed Mr. Pannu from his Recaust Operator position. Mr. Pannu says that, by these actions, Skeena and the WCB have discriminated against him because of his religion. He filed a complaint under ss. 3 and 8 of the former Human Rights Act, now ss. 8 and 13 of the Human Rights Code, R.S.B.C. 1996, c. 210, as amended (the "Code"). I was designated to hear and determine his complaint.

ISSUES

4 The central issue in this case is whether each of Skeena and the WCB can justify their respective requirements in the face of their adverse consequences for Mr. Pannu because of his religion. The parties agree that Mr. Pannu lost his Recaust Operator job because of the combined effect of Skeena's requirement that Recaust Operators perform emergency shut downs and the WCB's requirement that persons who may be in gas-contaminated environments be clean-shaven in order to be able to wear SCBAs. The primary questions I must decide are whether these requirements are bona fide and justifiable and whether the WCB and/or Skeena could have accommodated Mr. Pannu's wearing of a beard without incurring undue hardship.

FACTS AND EVIDENCE

Introduction
5 At the hearing, Mr. Pannu testified on his own behalf; Richard Hynes, an Occupational Safety Officer with the WCB, testified for the WCB; Roy Vatcher, the recaust area supervisor, and Kathy Gomez, Skeena's human resources supervisor at the relevant time, testified for Skeena.

6 The documents produced by Skeena and by the WCB at the outset of the hearing, as well as an agreed statement of facts were admitted into evidence on consent.

7 There are few factual issues in this complaint. Both sides made significant concessions. The Complainant agrees that it is necessary to shut down the recaust equipment in the event of a major gas leak. Although counsel for the Complainant appeared to resile from this concession at certain points in his submissions, he also re-asserted this concession. Whether the parties agree or not, I am satisfied that it is necessary to shut down the recaust equipment in the event of a major emergency gas leak. Skeena's evidence on this point was persuasive and uncontradicted: it would be dangerous to evacuate the area for an indeterminate amount of time, leaving poisonous gases to burn in extremely hot kilns unsupervised.

8 The Complainant also agrees that Skeena had to comply with the WCB's order that it institute safe emergency shut down procedures and he does not contest the validity of the WCB order. He agrees that the persons performing an emergency shut down must be able to wear SCBAs and that a "buddy system," whereby two people remain together in the contaminated environment, is necessary in such circumstances. Finally, the Complainant concedes that there are no respirators that would safely allow a bearded person to perform an emergency shut down of equipment in a gas-contaminated area.

9 For their part, Skeena and the WCB accept that Mr. Pannu wore a beard because of his faith. They concede that he has established a prima facie case of discrimination because of religion against each of them, and that each of the WCB and Skeena bears the burden of justifying its actions.

Chronology of events
10 In 1973, Mr. Pannu began working for the company that became Skeena. He moved to the recaust department in 1976. He worked his way up the line of progression in that department: he started as a Utilityman, moved up to Assistant Recaust Operator ("ARO"), and, in 1980, became Recaust Operator, the senior person in the line of progression.

11 The recaust department operates 24 hours a day, broken into 12-hour day and night shifts. Four crews, consisting of a Recaust Operator, ARO and Utilityman, fill each shift. There is also a pool of an additional 4-5 Utilitymen who can be assigned to a crew as needed. Each crew generally works a "tour" of 2 day or night shifts, then rotates to two night or day shifts.

12 The Utilityman position is an entry-level position. Turnover is high. Utilitymen have little knowledge of the non-condensable gas ("NCG") system or of the control room. A Utilityman may elect to be trained for an ARO position either by bidding successfully for a vacant ARO position (success depends on seniority) or because the shift supervisor considers that a "relief"' ARO is needed. "Relief" persons are trained to fill positions higher than those they occupy in the event that the more senior person is absent from their regular shift. The more senior Utilitymen are the people who would most likely be trained as "relief" AROs or who would successfully bid for any ARO opening. Similarly, the more senior AROs would be trained as relief Recaust Operators and/or would be able to obtain those positions if they became vacant.

13 Training is done on the job; however, someone else fills the trainee's position while he or she is in training. That is, the trainee is considered to be absent from his or her shift while in training. Generally, it takes 3 tours (or 144 hours) to train a Utilityman as an ARO. It takes 4 tours (192 hours) to train an ARO to be a Recaust Operator.

14 In 1983, Mr. Pannu grew a beard as an expression of his Sikh faith and in preparation for his baptism as a Sikh, which occurred in 1985. At that time, the recaust department contained two lime kilns, heated to over 2,000 degrees. The NCG system piped various poisonous gases to the recaust area from elsewhere in the mill to be burned off in the kilns.

15 Perhaps the most dangerous gas leak that could occur in recaust is a hydrogen sulfide leak. Hydrogen sulfide is colourless and odourless except at very low concentrations. It can be lethal: exposure can knock a person out in seconds and a single breath of pure hydrogen sulfide can kill instantly. The exposure limit for hydrogen sulfide set by the industrial health and safety regulations is 10 parts per million ("ppm").

16 Workers at Skeena always carry bite block respirators to allow them to escape in the event of an emergency gas leak. Both bearded and clean-shaven persons can safely wear bite block respirators. However, they do not allow the wearer to remain in a gas-contaminated environment for any length of time. A person who must remain in such an environment, for example to shut down equipment, conduct tests, or rescue someone, must wear an SCBA to protect them from an unacceptable level of gas exposure.

17 Mr. Pannu testified that, after he appeared at work with his beard in 1983, he was sent for a "fit test" to see if he could safely wear an SCBA. He could not wear the SCBA properly because of his beard. When he was told his beard was unsafe, Mr. Pannu explained that he wore a beard for religious reasons. Mr. Pannu testified that his supervisor at the time, Mel Hubbard, gave him a copy of Skeena's 1981 beard policy (Ex. 12). This policy designated a number of positions within the mill for which being clean-shaven was a requirement. No recaust department positions were so designated. Mr. Hubbard told Mr. Pannu that this meant he would not have to shave.

18 Mr. Pannu continued to wear a beard and to work as a Recaust Operator until September 1991, when he was sent for another fit test. Again, Mr. Pannu failed the test. Again, he was asked to shave and refused. And again, nothing changed.

19 In the spring of 1993, workers monitoring gas levels in the recaust control room recorded consistently elevated levels of hydrogen sulfide, sometimes as high as 50-80 ppm. Everyone in the area, including Mr. Pannu, was worried because the source of the gas leak could not be found. On April 29, 1993, a "near miss" incident was reported in the recaust department, as elevated hydrogen sulfide concentrations were found in the mezzanine and control room areas. Pipefitters working in the mezzanine area and wearing SCBAs noted levels of 410 ppm. The sewer line was identified as the source of the problem (Ex. 6, Tab 12).

20 Richard Hynes, a WCB occupational health and safety officer inspected the recaust area in May 1993 and made a series of orders (Ex. 7). He ordered that Skeena "take immediate steps" to reduce gas concentrations to permissible levels (Order 3) and implement a continuous monitoring system for hydrogen sulfide and mercaptan gas levels in the recaust control room (Order 4). He also wrote that Skeena's emergency evacuation procedures for the recaust control room were inadequate and he ordered Skeena to create such procedures for hydrogen sulfide and other air contaminant emergencies (Order 5). Mr. Hynes testified that, at the time of his May 1993 inspection, he did not meet Mr. Pannu and did not know about his beard.

21 In response to the WCB orders, in early July 1993, Mr. Vatcher drafted an emergency evacuation procedure. The procedure required that all personnel evacuate the recaust area in the event of gas in the control room. The procedure expressly required the Recaust Operator and ARO to then put on SCBAs and return to the area to shut down the flames in both kilns, shut down the feed to the kilns, shut down both slakers, and put the pressure filter on stop mode. They were to test for gases in the control room before the area was cleared.

22 There was conflicting evidence on how long it would take to perform these procedures: Mr. Pannu initially testified that it would take him only 2-3 minutes; he later stated that it would take 5 minutes. When asked, on cross-examination by counsel for the WCB, about the possibility that a Recaust Operator might have to remain in the gas-contaminated environment for 20-30 minutes, Mr. Pannu replied that he didn't know whether or not that was true. Mr. Hynes' evidence was that Skeena's emergency procedure would take at least 15-20 minutes. I prefer the evidence of Mr. Hynes to that of Mr. Pannu on this point. Mr. Pannu was less certain in his estimate than Mr. Hynes. Based on the evidence I heard about what is actually involved in performing the required actions, and allowing for the fact that in an emergency people and equipment may work less than perfectly, I find it more likely that the procedure would take well over 5 minutes. No one suggested that a bite block respirator or any protective equipment other than an SCBA would allow a worker to complete these procedures safely.

23 Mr. Vatcher testified that, later in 1993, he discussed with Mr. Pannu the implications of the new procedures for his beard and that Mr. Pannu expressed concern about what the procedure would mean for him. Mr. Pannu denied this conversation. However, his recollection of the events was not always clear or consistent, whereas Mr. Vatcher's recollections were. I prefer Mr. Vatcher's evidence on this point; I accept that Mr. Vatcher spoke to Mr. Pannu about the matter.

24 Mr. Vatcher also discussed the new emergency evacuation procedure and Mr. Pannu's beard within Skeena management and with the Pulp, Paper and Woodworkers of Canada, Local 4 (the "Union"). In its November and December 1993 meetings with the Union (Ex. 6, Tab 13, 14), Skeena raised the question of revising its 1981 beard policy (Ex. 12) and designating additional positions as "no beard" positions or making "no beards" a mill-wide requirement. There is no record that any agreement was reached, nor is there any evidence of what, if any, progress was made on the issue between December 1993 and March 1994, when the WCB intervened.

25 Thus, although Skeena finalized its emergency procedure in 1993 and required the Recaust Operator and ARO to wear SCBAs in the event of a gas emergency, it did nothing to enforce that policy with respect to Mr. Pannu. Mr. Vatcher agreed that Skeena did not consider writing an emergency procedure that would designate someone other than the Recaust Operator to do the shut down. Nor did it attempt to remove Mr. Pannu from his Recaust Operator position and place him elsewhere in the mill.

26 Skeena allowed Mr. Pannu to continue to work as a Recaust Operator even though he could not have complied with its emergency procedures. Skeena likely acted as it did because it could see no easy solution to the conflict between its emergency procedure and Mr. Pannu's religious practice. It tried to avoid the issue instead. However, as Mr. Vatcher testified, everyone who worked in the recaust department knew that Mr. Pannu could not safely do an emergency shut down and understood that, on his shift, the ARO and Utilityman would likely have to do it instead. The recaust employees were unhappy with the situation. However, it continued for several months until the WCB stepped in again on March 9, 1994.

27 As a result of complaints by a number of recaust employees, and as a follow-up to his May 1993 inspection, Mr. Hynes re-visited the recaust department with Mr. Vatcher on March 9, 1994. He saw Mr. Pannu working as a Recaust Operator. Mr. Hynes asked Mr. Pannu to put on an SCBA. Mr. Pannu did not put on the SCBA correctly, quite apart from his beard, although he tried for several minutes. Mr. Hynes testified that, with practice, a person could don an SCBA in under a minute. In any event, Mr. Pannu's beard meant that the SCBA could not seal with his face.

28 As a result of his inspection, Mr. Hynes wrote a number of orders against Skeena (Ex. 3, Tab 1D). As Skeena required its Recaust Operators to be able to use SCBAs, Mr. Hynes ordered that all Recaust Operators comply with WCB regulation 14.23(4) and be clean-shaven where the respirator seals with his face. Mr. Hynes also ordered all Skeena Recaust Operators to be competent in donning and using an SCBA (WCB Reg 14.23(3)). Mr. Vatcher testified that the WCB imposed a fine of $4,000 on Skeena for its infractions of WCB regulations.

29 Mr. Pannu testified that, before his next shift, his supervisor, Dan Danroth, called him at home and told him that he could not work as a Recaust Operator unless he shaved. Mr. Pannu was not willing to shave. The agreed statement of facts states that Skeena removed Mr. Pannu from the Recaust Operator position on March 11, 1994.

30 On March 14, 1994, Mr. Pannu's father died and Mr. Pannu took a two-day bereavement leave. While he was away, a pre-existing back problem flared up and Mr. Pannu was confined to his bed. As it turned out, his back problem was serious and he could not return to work for many months. At that time, however, no one realized the severity of Mr. Pannu's back problem. Everyone assumed that he would be able to return to work shortly and Skeena began looking for an alternative position for Mr. Pannu.

31 George Hines, Skeena's loss prevention supervisor, met initially with Karl Sandhu, a Union representative, on March 22 to discuss Mr. Pannu's situation. They discussed the available jobs and Mr. Pannu's position that he ought to be maintained at his Recaust Operator rate of pay. Mr. Hines and Mr. Sandhu met again on March 28. At that time, Mr. Hines gave Mr. Sandhu a list of available positions to discuss with Mr. Pannu and agreed to provide him with a list of all mill jobs for which respirators were not required. On March 29, Mr. Sandhu informed Mr. Hines that Mr. Pannu had declined all positions, and that Skeena should simply place him where it needed him.

32 On March 30, Mr. Hines spoke to Mr. Pannu directly. He explained the types of positions available. Mr. Pannu made it clear that any position he took was under protest, as he believed he should remain in the Recaust Operator position. Mr. Hines asked Mr. Pannu if his back "would be a problem" and Mr. Pannu confirmed that it would. Mr. Hines then suggested that a Stores Counterman position would be better for Mr. Pannu than a Utilityman position. They agreed to speak the next day.

33 On March 31, Mr. Hines spoke to Mr. Pannu by telephone and visited him at his home. Mr. Pannu was still on bed-rest. Mr. Hines outlined the Stores Counterman and Knife Grinder positions for Mr. Pannu. Mr. Pannu said he would accept the Knife Grinder position, "under protest."

34 As indicated by notes of the April 14, 1994 meeting between Skeena and the Union (Ex. 6, Tab 20), the Union objected to Mr. Pannu taking the Knife Grinder position because he had not signed the bid. The issue is noted again in the minutes of the April 28 meeting between the Union and Skeena. The minutes record the Union's continued opposition to placing Mr. Pannu in the Knife Grinder position as well the fact that the process "was stalled" because of Mr. Pannu's ongoing back problems. At that point it was expected that Mr. Pannu would return to work in 6-8 weeks.

35 Ms. Gomez testified that she became involved in the search for an alternate position for Mr. Pannu in late spring 1994. In June 1994, while Mr. Pannu was still on medical leave, Ms. Gomez arranged for videos to be made of the Knife Grinder and Stores Counterman positions so that Dr. Mackle, Mr. Pannu's physician, could tell Skeena which would be more suitable for Mr. Pannu. Dr. Mackle responded that neither was suitable to Mr. Pannu's medical condition.

36 Ms. Gomez then discussed a position as Second Cook with Mr. Pannu and made a video of the job for Dr. Mackle to review. In his letter of August 27, 1994, Dr. Mackle recommended some modifications to the position, but suggested that Mr. Pannu could try it.

37 However, his back condition did not allow Mr. Pannu to return to work until January 1995. At that time, Dr. Mackle recommended a gradual return to work schedule. Skeena complied with this request and started Mr. Pannu in the Second Cook position. Later that month, as Mr. Pannu was having difficulty with the Second Cook job and with Dr. Mackle's agreement, Skeena retained Karen Skarpness, a physiotherapist, to evaluate Mr. Pannu's abilities. She concluded that the position could not be modified to suit Mr. Pannu's physical limitations. Accordingly, Mr. Pannu stopped working as a Second Cook in mid-February.

38 In April 1995, Mr. Pannu successfully applied for long-term disability ("LTD") benefits. Skeena stated that Mr. Pannu's position was Recaust Operator on the LTD application form, as it had not yet placed him in another position. Thus, Mr. Pannu's claim succeeded on the basis that he was disabled from that occupation. He was paid disability benefits based on a Recaust Operator's rate of pay.

39 From February 1995 onwards and during the time that Mr. Pannu received LTD benefits, Skeena continued to search for a position that was consistent with Mr. Pannu's inability to wear an SCBA and his back condition. Through the LTD insurer, Skeena arranged for Mr. Pannu to take a work-conditioning program with Coast Rehabilitation Services ("Coast") and to try jobs in various areas of the mill.

40 In August 1995, after having worked with Mr. Pannu for several months, Coast reported to Skeena that Mr. Pannu's maximum attainable job level would be positions with a "light" rating. He could also perform work rated "sedentary." "Light" rated positions may require lifting up to 20 lbs. occasionally and frequent or constant lifting of up to 10 lbs.; they may also entail significant amounts of walking or standing. Sedentary positions only require occasional lifting of up to 10 lbs. Mr. Pannu was reported to have no tolerance for kneeling, stooping or crouching; he was able to lift up to 15 lbs. occasionally and up to 8 lbs. frequently, with no tolerance for medium or heavy lifting. He had no tolerance for carrying or climbing, but could perform occasional walking including stairs and occasionally push or pull up to 40 lbs. with a trolley (Ex. 6, Tab 42).

41 When Mr. Pannu's LTD benefits ran out in late 1996, after further medical evaluation of suitable positions, Skeena placed Mr. Pannu in a truck driver position.

LAW

42 Mr. Pannu alleges that the WCB has discriminated against him because of his religion contrary to s. 8 of the Code. That section provides, in part:

8(1) A person must not, without bona fide and reasonable justification,

...

(b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public;

because of the ... religion ... of that person or class of persons.

43 Mr. Pannu alleges that the WCB's regulation 14.23 contravenes this section because it requires workers who may be exposed to gas-contaminated environments to wear respirators, and workers required to use respirators to be clean-shaven where the respirator seals with the face, without making any allowance for persons whose beards are part of their religious practice.

44 Mr. Pannu alleges that Skeena has discriminated against him because of his religion contrary to s. 13 of the Code. That section provides, in part:

13(1) A person must not

...

(b) discriminate against a person regarding employment or any term or condition of employment

because of the ... religion ... of that person.

...

(4) Subsections (1) and (2) do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.

45 Mr. Pannu alleges that Skeena contravened this section by designating the Recaust Operator as one of the positions responsible for performing an emergency shut down in the event of a major gas leak, without making any allowance for Mr. Pannu's inability to wear an SCBA because of his beard. The consequence was that Mr. Pannu was removed from his position as Recaust Operator.

46 Whether the discrimination alleged is in the employment context or whether it arises in the context of providing services to the public, if the treatment in issue can be characterized as a bona fide occupational requirement ("BFOR"), it will not contravene the Code. Thus, I must determine whether the WCB's regulation 14.23 and/or Skeena's requirement that its Recaust Operators perform emergency shut downs constitute BFORs.

47 The Supreme Court of Canada has interpreted what is a BFOR in the context of claims of discrimination: British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 ("Meiorin"); British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 ("Grismer"). The Court has established a three-stage analysis for determining whether a standard or rule is a BFOR (Grismer, para. 20):

Once the plaintiff establishes that the standard is prima facie discriminatory, the onus shifts to the defendant to prove on a balance of probabilities that the discriminatory standard is a BFOR or has a bona fide and reasonable justification. In order to establish this justification, the defendant must prove that:

1. it adopted the standard for a purpose or goal that is rationally connected to the function being performed;

2. it adopted the standard in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal; and

3. the standard is reasonably necessary to accomplish its purpose or goal, in the sense that the defendant cannot accommodate persons with the characteristics of the complainant without incurring undue hardship.

48 The Complainant concedes that both the WCB and Skeena imposed their respective standards in good faith and for purposes rationally connected to the function being performed. Thus, I must determine whether each Respondent has established, on a balance of probabilities, that its standard was reasonably necessary in that Mr. Pannu's beard could not have been accommodated without undue hardship.

49 It is useful to consider the complaints against the WCB and Skeena separately.

ANALYSIS

The Complaint against the WCB

50 The WCB standard in issue in this case is contained in Reg. 14.23 and, in particular, the requirement that all workers who may have to wear SCBAs be clean-shaven where the respirator seals with the face. The WCB has conceded that its standard prima facie discriminates against Mr. Pannu because of his religion. Mr. Pannu has conceded that the standard is rationally connected to the WCB's function of protecting workers' health and safety and that it was imposed in good faith. At issue is whether the standard is reasonably necessary in the sense that it cannot admit of exceptions or modifications without creating undue hardship.

51 Mr. Pannu submits that Reg. 14.23 could have been drafted to explicitly accommodate persons who wear beards for religious reasons. He also argued that the WCB could have "treated Mr. Pannu more humanely" in March 1994, by allowing Skeena and Mr. Pannu time to work out a mutually agreeable solution before imposing a fine. After setting out Reg. 14.23, I will address each of these arguments in turn.

Regulation 14.23 provides as follows:

14.23.(1)(a) When workers are or may be exposed to an oxygen deficient atmosphere or to harmful concentrations of air contaminants, mechanical means or engineering design shall be utilized to prevent or to eliminate such hazardous conditions of exposure.

(b) Where the prevention or elimination of such hazardous conditions is not reasonably practicable, or where the exposure results from temporary or emergency conditions only, every worker exposed shall wear protective respiratory equipment.

(2) Protective respiratory equipment shall provide adequate protection against contaminants in the work place and shall be maintained in good working order in accordance with the manufacturer's instructions. The protective respiratory equipment shall meet the requirements of standards acceptable to the Board. Equipment meeting NIOSH and MSHA standards are acceptable. The schedule in Appendix "C" may be used as a guide in the selection of equipment.

(3) Every worker who is required to use respiratory protective equipment shall be given pre-job instruction by the employer to understand its use, its limitations, and its maintenance requirements, as far as those relate to its correct use by the worker.

(4) Workers required to use a respirator shall be clean-shaven where the respirator seals with the face.

52 With respect to 14.23(2), it is accepted that a bite block respirator is only adequate to allow a worker to escape from a gas-contaminated environment. An SCBA is the only kind of respirator that would allow a worker to remain in a gas-contaminated environment for any length of time, for example, to shut down equipment or to rescue someone.

53 Turning to the first argument, it is important to distinguish the complaint against the WCB from the complaint against Skeena. Reg. 14.23 does not designate which workers may be exposed to gas-contaminated environments. It does not say who ought to be responsible for shutting down equipment during gas emergencies. It merely sets standards for donning and using appropriate respiratory equipment for all workers whose positions may expose them to gas contamination. It is Skeena, not the WCB, who determined that Mr. Pannu's job description included responsibility for shutting down recaust equipment in a gas emergency.

54 The Complainant did not suggest how Reg. 14.23 might be drafted to better accommodate people who wear beards for religious reasons. Given the nature of the standard at issue, I can see only three logically possible accommodations. First, the standard could specify different respiratory equipment that would allow bearded workers such as Mr. Pannu to remain in gas-contaminated environments. The parties agree that no such respirator exists. Therefore, this accommodation is not possible.

55 Second, the regulation could require individual testing to see if particular bearded workers could safely wear an SCBA. Such a requirement would only be reasonable if some beards might be consistent with the safe use of SCBAs. All of the expert evidence tendered on this point by the WCB shows unequivocally that no beard growth is compatible with the safe use of an SCBA. That evidence includes a report prepared by K. Paul Steinmeyer, a health physicist, who exhaustively reviewed the relevant literature and conducted his own tests on bearded individuals (Ex. 4, Tab 2). He concluded that the longer the beard growth, the greater the leakage, and "tight-fitting facepieces leak when used by bearded individuals." Thus, this is not a case where individual testing, of the kind found to be appropriate in Meiorin or Grismer, is a possible accommodation.

56 The only remaining possibility is an exemption. That is, the standard could exempt workers who wear beards for religious reasons from the 14.23(4) requirement that they be clean-shaven where the respirator seals with the face. The effect would be to allow employers to require such workers to enter gas-contaminated environments at enormously increased personal risk (due to leakage from the respirator). Would such an exemption constitute undue hardship?

57 The Supreme Court's reasoning in Grismer is instructive. There, the service-provider was the Superintendent of Motor Vehicles who cancelled Mr. Grismer's driver's licence because he did not meet its vision standard. That standard required all persons with Mr. Grismer's visual condition to be denied licences, without exception and without any opportunity for individual assessment. Before addressing the three-part test in Meiorin, MacLachlin J. (as she then was) stated that it was necessary to precisely define the purpose of the standard in issue. She found the Superintendent's standard was "reasonable" rather than "absolute" road safety, since the current driving licence regime necessarily contemplates that some level of risk from driving is acceptable.

58 I find that the purpose of Reg. 14.23 is a reasonably high level of protection from exposure to gas contamination. Clearly, workers are sometimes exposed to gas-contaminated environments, and must sometimes work in such environments (for example, in emergencies). However, Reg. 14.23 seeks to minimize the risk of gas exposure and maximize worker safety, subject to the unavoidable need to occasionally work in a gas-contaminated environment.

59 In Grismer, MacLachlin J. stated that there were two ways that the Superintendent could justify its position that its visual acuity standard could admit of no exception. The first of these would be to show that accommodation was impossible because no one with Mr. Grismer's visual condition can drive safely. That is, allowing such persons to drive would be "totally incompatible" with the standard of reasonable highway safety (paras. 32-34). MacLachlin J. found that the Superintendent could not defend its failure to accommodate Mr. Grismer on this basis because there was evidence that some jurisdictions permit people with Mr. Grismer's visual condition to drive under certain conditions. Further, there was evidence that Mr. Grismer could use visual aids to improve his vision. Thus, it could not be said that people with Mr. Grismer's condition could never drive safely.

60 In the present complaint, by contrast, I find that the WCB has shown that exempting workers who wear beards for religious reasons would be "totally incompatible" with the goal of protecting workers from exposure to gas contamination. Mr. Steinmeyer's expert opinion was that he found no jurisdiction where beard-wearers are permitted to remain in gas-contaminated environments. The evidence also establishes that there is no known respiratory equipment that would allow bearded workers to work in gas-contaminated environments without an unacceptable level of gas exposure (Ex. 3, Tab 4). The Complainant did not take issue with any of the WCB's evidence on these points.

61 An exemption might be justified if the increased risk from not being able to wear a respirator was borne by the exempted individual. For example in Dhillon v. B.C. (Min. of Transportation and Highways, Motor Vehicle Branch) (1999), 35 C.H.R.R. D/293 (B.C.H.R.T.), the complainant was willing to assume the increased risk of driving a motorcycle wearing a turban and not a helmet. The Tribunal found that the mandatory helmet law discriminated against Mr. Dhillon, in part, because the increased safety risk was entirely to himself. However, the increased safety risk posed by an exemption from Reg 14.23 is not likely to be confined to the exempted individual. Given the range of circumstances in which workers are exposed to gas-contaminated environments where SCBAs are necessary, is more likely than not that exempting bearded persons would also increase the risk to others. In the present case, for example, if Mr. Pannu passed out from gas exposure, others would have to rescue him. If he became incapacitated before completing the shut down, the hazard posed by the equipment would not be minimized.

62 I conclude that it is not possible to exempt beard-wearers from Reg. 14.23 because any such exemption would be totally incompatible with the degree of safety set by the standard.

63 With respect to the Complainant's argument, that the WCB ought to have delayed enforcing its orders in March 1994, I find that any further delay would have constituted undue hardship. As I have found that the rule could not admit of exceptions, it was the WCB's responsibility to enforce it. Moreover, Mr. Pannu had continued to work as a Recaust Operator despite the fact that he could not safely comply with the emergency procedures written by Mr. Vatcher in 1993. While there is some evidence that Skeena tried to address the problem with Mr. Pannu and with the union in late 1993, nothing had happened by March 1994 and workers were complaining directly to the WCB. In these circumstances, it would have been irresponsible for the WCB not to enforce its regulation. In fact, it was the March 9, 1994 WCB order and fine that stimulated Skeena to finally act. Whether Skeena's action was justifiable relates to the complaint against Skeena; it is not an argument that the WCB should not have acted when and as it did.

64 In conclusion, I find that Reg 14.23 is a BFOR and that the WCB acted appropriately in enforcing it in March 1994. The complaint against the WCB is dismissed.

The Complaint against Skeena

65 The central issue in Mr. Pannu's complaint against Skeena is the justifiability of the emergency procedure that Mr. Vatcher wrote in response to the WCB's 1993 order. As described above, the procedure requires everyone to evacuate the area initially, an action that can be performed with bite block respirators and for which Mr. Pannu's beard does not pose any additional risk. The procedure then requires the Recaust Operator and ARO to put on SCBAs and return to the gas-contaminated area to shut down various equipment and test for gases in the control room. These steps would take several minutes at a minimum and, depending on the nature and consequences of the emergency, might take considerably longer.

66 Counsel for Mr. Pannu conceded that gas emergency procedures are necessary in that someone must shut down the equipment as described. He agreed that an SCBA is required if there is gas in the area and that a buddy system is also necessary. The only aspect of the emergency procedure that the Complainant attacks is Skeena's designation of the Recaust Operator and ARO as the two people who must perform the procedure. Mr. Pannu argues that Skeena ought to have accommodated his inability to safely wear an SCBA by designating someone other than him to perform the shut down with the ARO, should an emergency occur on his shifts. Skeena argues that such an accommodation would constitute undue hardship.

67 As the Recaust Operator, ARO and Utilityman are the only positions in the recaust department, the consequence of exempting Mr. Pannu from the emergency procedure is that the ARO and Utilityman would have to perform the shut down should a gas emergency occur on one of Mr. Pannu's shifts. To avoid a finding of discrimination, Skeena must prove, on a balance of probabilities, that substituting the Utilityman for the ARO and the ARO for Mr. Pannu, as I have described, would constitute undue hardship.

68 Following the analysis in Grismer that I described in discussion the WCB complaint, I must first state the purpose of the requirement in issue. I find that the purpose of the emergency procedure is to ensure that the kilns, slakers and pressure filter are made safe so as to eliminate or minimize any further hazards in a gas emergency.

69 In Grismer, the respondent initially tried to justify its refusal to consider individual testing by arguing that accommodating Mr. Grismer was totally incompatible with the purpose of its standard. When it failed to succeed on this basis, it argued that individualized testing would constitute undue hardship because such tests would be too expensive and too dangerous.

70 In the present case, I must determine whether Skeena has shown that exempting Mr. Pannu from its requirement that Recaust Operators perform shut downs would be completely incompatible with the purpose of eliminating or minimizing dangers from the equipment during a gas emergency. If so, the requested accommodation would be impossible. If not, I must consider whether exempting Mr. Pannu would constitute undue hardship to Skeena.

71 Before addressing these questions, I must consider an interesting submission on how carefully I ought to scrutinize Skeena's requirement that Recaust Operators and AROs perform the shut down. Counsel for Skeena submitted that courts scrutinize qualifying standards for jobs or services much more rigorously than they do requirements that comprise part of the job or service itself. He argued I ought not to review the Skeena standard as rigorously as the standards in Grismer and Meiorin, because those cases concerned qualifying requirements, not standards that are part of the job or service itself.

72 Meiorin concerned an aerobic fitness standard that was a condition of a forest firefighter's job. Grismer concerned a visual standard that was required to obtain a driver's licence. In these cases, the issue was whether the qualifying requirement that excluded the complainant was a necessary pre-condition to the job of being a competent forest firefighter or to the activity of driving with the degree of safety expected of all B.C. drivers. The Court found that such pre-conditions ought to be scrutinized carefully to ensure that they do not inadvertently bar people like the complainants from gainful employment or important activities.

73 However, counsel for Skeena submitted that more deference ought to be shown when reviewing a requirement that comprises part of the job or activity itself. That is, if Ms. Meiorin had argued she ought to keep her job even though she was less competent than male forest firefighters, or if Mr. Grismer had argued he ought to get a driver's licence even though he drove less safely than other drivers, the Court would have reviewed the standard of competent forest fire-fighting or reasonable road safety less rigorously than it did the qualifying requirements.

74 It is true that in both Grismer and Meiorin the Court emphasized that the standards in issue were qualifying standards and that neither complainant was suggesting that the standards of competent forest firefighting or safe driving ought to be lowered to accommodate them. However, in neither of these cases, nor in any other case of which I am aware, do I find support for the proposition that tribunals and/or courts should defer more to employers when reviewing a standard that is part of the job itself rather than a qualifying requirement. In Meiorin, MacLachlin J. implied that there is no such distinction (at para. 64):

Courts and tribunals should be sensitive to the various ways in which individual capabilities may be accommodated. Apart from individual testing to determine whether the person has the aptitude or qualification to perform the work, the possibility that there may be different ways to perform the job while still accomplishing the employer's legitimate work-related purpose should be considered in appropriate cases.

75 I can see no justification for scrutinizing qualifying and job standards differently. The concern about barring people from employment or services on the basis of unfounded assumptions or stereotypes about their personal characteristics applies to the jobs or services themselves as much as it does to the pre-conditions for them. Put another way, if a job requirement is not really necessary, why should it be allowed to have the effect of discriminating against a group any more than an equally unjustifiable qualifying requirement?

76 I think a more persuasive reading of the case law and a more principled basis for distinguishing between the two kinds of requirements is that the nature of the requirement is an important part of the context in which the respondent's justification for it must be assessed. For example, where the requirement is part of the job itself, an accommodation may have different and more serious implications for co-workers than altering a qualifying requirement. A qualifying requirement is necessarily more distant from the objective of the requirement than is the job requirement itself. In this sense, it may be that there are generally more possible alternative qualifying requirements that would still ensure that the purpose behind the rule is met than there are requirements intrinsic to the activity or job itself. But the nature of the requirement or standard is not the only relevant consideration.

77 The context in which the Court reviewed the respondent's actions in Grismer was informed both by the fact that a qualifying standard was in issue and by the fact that the nature of the accommodation requested was that Mr. Grismer be given an opportunity to prove he met the existing standard. Had Mr. Grismer requested that he be exempted from the existing visual acuity standard, different considerations would have come into play.

78 Returning to the main question, has Skeena shown that exempting Mr. Pannu from its requirement that Recaust Operators perform shut downs would be completely incompatible with its purpose of eliminating or minimizing dangers from the equipment during a gas emergency? Alternatively, if not completely incompatible with its purpose, would such an exemption impose undue hardship on Skeena?

79 Relevant contextual factors in this determination include the nature of the standard in issue and the nature of the accommodation requested. Here, the standard is part of the job itself: it concerns an emergency procedure that is not ordinarily performed, but for which the Recaust Operator has ongoing responsibility: if the need arises, the Recaust Operator must do it despite personal risk. The nature of the accommodation requested is an exemption: Mr. Pannu asks that a co-worker be designated to perform the shut down in his stead.

80 Counsel for the Complainant argued that exempting Mr. Pannu from the job requirement that he perform the emergency shut down would not constitute undue hardship to Skeena for the following reasons:

- Skeena had tacitly approved such an arrangement by allowing Mr. Pannu to remain on the job after Mr. Vatcher wrote the 1993 procedure and by its lack of any written policy requiring Recaust Operators to be clean-shaven before 1993.

- The risk of a major gas leak is remote; there has never been a situation in which a complete emergency shut down has been required.

- Skeena could train the Utilitymen and AROS on Mr. Pannu's shifts to improve their competency to perform the emergency shut down.

81 Skeena responded to each of these arguments as follows:

- It did not approve of Mr. Pannu remaining on the job after May 1993, but was actively seeking a solution to the problem. As confirmed by the WCB's orders, Skeena was wrong in failing to have an emergency procedure and in not formally requiring the Recaust Operator to be clean-shaven.

- While there has never been a major gas leak necessitating an emergency shut down, there have been several "close calls" so the possibility that a Recaust Operator would have to don an SCBA is not remote.

- Training Utilitymen to replace Mr. Pannu would be totally incompatible with the purpose of the emergency procedure. Alternatively, the cost of training others would be unacceptably high; it would disrupt the collective agreement and would adversely affect other employees.

82 In approaching the issue, I must bear in mind that it is Skeena, not the Complainant, who bears the burden of proof.

83 I am persuaded by Skeena's arguments on the first two points. Mr. Vatcher candidly acknowledged that Skeena erred in its handling of the issue; he said that allowing Mr. Pannu to work as a Recaust Operator for as long as he did was a mistake and that there was no justification for Skeena's failure to have a written emergency procedure. Whether or not Skeena tacitly approved a less than acceptable level of safety by allowing Mr. Pannu to work as a Recaust Operator is not a reason that this state of affairs ought to continue after the WCB determined it was unacceptable.

84 With respect to the second point, the evidence establishes that the danger of a major gas leak is real. While the need to perform the emergency procedure may never arise, it is sufficiently likely that the WCB ordered Skeena to create a formal emergency procedure, a point the Complainant does not contest. Since an emergency procedure is required, an important part of that procedure is necessarily the designation of who is responsible for doing it. It is clearly undesirable that there be any doubt in an emergency about who should be doing what.

85 Skeena's defence really turns on the third point in issue: would exempting Mr. Pannu be totally incompatible with the purpose of the emergency procedure or, if not, would exempting Mr. Pannu cause undue hardship to Skeena?

86 As I have said, the purpose of Skeena's standard is to minimize or eliminate additional danger during a gas emergency. Designating the Recaust Operator and the ARO to perform the emergency procedure is reasonably necessary to achieve that purpose, as these are the two most experienced and knowledgeable people in the department. They are most likely to be able to "trouble-shoot" during an emergency, for example, if there is difficulty with the shut down because equipment is not working properly.

87 The parties agree that, if Mr. Pannu was exempted from the emergency procedure, the ARO and Utilityman on his shift would have to do it. Skeena argues that designating these two persons to perform the emergency shut down would be totally incompatible with the purpose of minimizing dangers, because they (and especially the Utilityman) do not have the experience and knowledge of the equipment that would enable them to trouble-shoot in an emergency. There is some evidence to support this position in the testimony of Mr. Hynes of the WCB. He testified that the WCB would have been concerned if Skeena's emergency procedure had designated the Utilityman rather than the Recaust Operator because a safe shut down in an emergency calls for the extensive job experience and training that a Recaust Operator has.

88 Replacing the Recaust Operator and ARO with the ARO and Utilityman would be a significant change. Although the likelihood of an emergency shut down is low, should an emergency occur, this would be precisely the sort of situation where the significant additional training and experience a Recaust Operator has could make an enormous difference to the safety of the equipment and of all workers in the area. I am satisfied that substituting the Utilityman on his shift for Mr. Pannu as a person who would perform the shut down in an emergency would be totally incompatible with the purpose of the emergency procedure.

89 However, the evidence also established that, when a Recaust Operator is absent, an ARO who is trained as a Recaust Operator can work as a relief Recaust Operator at that rate of pay. Similarly when an ARO is absent, a Utilityman trained as an ARO can work as a relief ARO. Skeena implicitly considers acceptable the increase in risk represented by the relief workers' relative lack of experience on shifts where the regular Recaust Operator and/or ARO is absent. Thus, training the Utilitymen and AROs on Mr. Pannu's shifts as relief AROs and Recaust Operators would not be totally incompatible with the purpose of the emergency procedure. Would it constitute undue hardship?

90 The Supreme Court of Canada has enumerated a number of factors relevant to the determination of what amount of hardship is undue. These include financial cost, disruption of the collective agreement, problems relating to the morale of other employees and, where safety is an issue, the magnitude of the risk and who bears it: Central Alberta Dairy Pool v. Alberta (Human Rights Comm.), [1990] 2 S.C.R. 489; Central Okanagan School District, No. 23 v. Renaud, [1992] 2 S.C.R. 970.

91 Skeena presented evidence and made submissions on these factors. However, the fact that the Union was not a party to the complaint against Skeena and that no Union witness was called means that the evidence of the effects on the collective agreement and on other employees is not complete. This is the sort of case where the Union's perspective, along with the Complainant's and the employer's views would have enabled the Tribunal to get a much better picture of the impact of the proposed accommodation.

92 Training sufficient Utilitymen and AROs as relief AROs and Recaust Operators to ensure that the Utilityman and ARO on Mr. Pannu's shift were competent to perform the shut down would impose some cost on Skeena. It would have to pay additional people to work while these individuals each went through 144-192 hours of training. There would be some ongoing cost because of the high turnover of Utilitymen. Mr. Vatcher estimated some 20 individuals would have to be trained and this number was not disputed. While the collective agreement (Ex. 17) sets out the rate of pay for Utilitymen and AROs so it would be possible to estimate the cost of the additional training, there is no evidence to put this amount in proportion to Skeena's expenses or revenues. Thus it is not possible to determine whether the additional training cost would constitute undue financial hardship to Skeena.

93 With respect to disruption of the collective agreement, Mr. Vatcher testified that ensuring that the ARO and Utilitymen on Mr. Pannu's shift formally assume the Recaust Operator and ARO duties in the event of an emergency shut down would be "extremely onerous." It would necessitate a change in job descriptions and would therefore disrupt the collective agreement. Without more evidence on this point, I am not persuaded that changes to job descriptions and to the collective agreement would really be necessary. If the existing job descriptions and collective agreement permit Utilitymen to be trained and to work as relief AROs and AROs to be trained and work as relief Recaust Operators, simply training more people would not disrupt the collective agreement.

94 However, the training described above only occurs on a voluntary basis. If not enough Utilitymen and AROs volunteered for the training, it would not be possible to staff Mr. Pannu's shift without requiring some Utilitymen and/or AROs to take additional training. This would require amendments to the job descriptions, a complicated process involving a 65-step assessment under an industry-wide job evaluation plan. Similarly, if the Union took the position that Utilitymen required to incur ongoing responsibility for emergency shut downs on Mr. Pannu's shifts ought to receive additional compensation, the job evaluation process would have to be initiated. Skeena did not present evidence of whether it had asked its Utilitymen and AROs whether they would be willing to receive training and assume responsibility for emergency procedures on Mr. Pannu's shifts. Nor did it show what the Union's position would have been. Therefore, it has not established undue hardship on this basis. It has only established that it is possible that accommodating Mr. Pannu would have caused a "substantial departure from the normal operation of the conditions and terms of employment in the collective agreement" (Renaud, at para. 26).

95 With respect to the impact on employee morale of exempting Mr. Pannu from the emergency procedure, there was evidence that employee concerns prompted the WCB inspection that led to Mr. Pannu's removal as Recaust Operator. However, as I understand that evidence, it shows that the recaust employees were very worried because it was not certain who would do the emergency shut down on Mr. Pannu's shifts. Since there is now a written emergency procedure in place, it could easily expressly designate the persons who are to perform the shut down on Mr. Pannu's shifts, so there would not be any more uncertainty on Mr. Pannu's shift than on any other shift. The more significant impact on other employees, in my view, is the change in who must put on an SCBA and perform the emergency shut down on Mr. Pannu's shifts. This is best addressed in considering the factor of risk, to which I now turn.

96 If a relief Recaust Operator and a relief ARO are designated to perform an emergency shut down instead of Mr. Pannu on his shifts, there will be some increase in the magnitude of risk, as they will not have his years of experience. While such substitutions are accepted by Skeena when workers are absent, implementing this accommodation will mean that on one of every four shifts, or 25% of the time, less experienced persons will be responsible for an emergency shut down, should the need arise. Further, under the current scheme, only the most senior (and therefore most experienced) Utilitymen and AROs are trained as relief workers. Presumably, working in a relief capacity during worker absences allows them to gradually increase their job experience in the relief positions. Thus, the relief AROs and Recaust Operators who substitute during absences acquire, over time, the job experience that is important in trouble-shooting during an emergency. However, if this existing pool of relief workers is not sufficient to fully staff Mr. Pannu's shifts (and it is implicit in Mr. Vatcher's evidence that it is not), then training additional relief AROs and Recaust Operators will mean training less experienced Utilitymen and AROs. Further, those individuals will be less likely to increase their job experience in the relief positions, as they will generally not be called upon to assume them except in an emergency. Thus, there will be some real increase in the magnitude of the risk both because less experienced people will be responsible for performing the shut down more of the time and because those people are likely to be less experienced in their relief positions than the current pool of relief workers.

97 A more significant change is who bears the risk. Shutting down the equipment during a major emergency gas leak rather than being able to evacuate the area is obviously very risky to the person who must enter the gas-contaminated environment to do it. The proposed accommodation would remove this risk from Mr. Pannu entirely and place it on the Utilityman on his shift.

98 Thus, this case differs from Dhillon, where the increased risk of injury from not wearing a motorcycle helmet was borne entirely by the complainant. Similarly, in Bhinder v. C.N.R., [1985] 2 S.C.R. 561, the increase in risk of not wearing a hard hat was also assumed by the complainant. Here, the proposed accommodation significantly reduces the risk to which Mr. Pannu will have to expose himself in a gas emergency compared to other Recaust Operators and places it entirely on the individual Utilityman on his shift. Those persons might be compensated for assuming that risk, either by being paid as a relief ARO for performing those duties during the shut down, and/or by increasing their pay generally. However, compensation does not address the fact that, if there are not enough volunteers, accommodating Mr. Pannu will mean this risk is imposed on a Utilityman, changing his or her job duties as compared to other recaust Utilitymen.

99 In Renaud (at para. 20), Sopinka J. stated that, in assessing the effects of a proposed accommodation on other employees,

...more than minor inconvenience must be shown before the complainant's right to accommodation can be defeated. The employer must establish that actual interference with the rights of other employees, which is not trivial but substantial, will result from the adoption of the accommodating measures. Minor interference or inconvenience is the price to be paid for religious freedom in a multicultural society.

In that case, the complainant required an accommodation of her religion that would permit her to work a special shift. The Court found that this accommodation might have required, "the adjustment of the schedule of some other employee but this might have been done with the consent of the employee or employees affected." The Court noted that the respondent employer had not canvassed this possibility. It concluded that the respondent had not established undue hardship.

100 In the present case, the impact on the Utilityman who is assigned to Mr. Pannu's shift will be substantial. Although the likelihood of a major gas leak is not high, I have found that it is a real rather than a remote risk. Further, the magnitude of the risk, should an emergency occur, is very high. The gases that could leak in the recaust area are extremely dangerous. Equipment may malfunction so that it takes longer to shut down the equipment than under optimal conditions. Moreover, remaining in the gas-contaminated environment in an emergency, even with a buddy and an SCBA, is far more risky than evacuating the area. The Utilityman who replaces Mr. Pannu will experience significantly increased risk to his or her safety as compared with Utilitymen on other shifts who can evacuate the area in an emergency.

101 In Renaud evidence that other employees would not voluntarily alter their shifts might have established that accommodating the complainant was undue hardship. What follows for this case, where the burden on the Utilityman of accommodating Mr. Pannu is not merely a shift schedule change, but the assumption of a significantly greater risk to personal safety?

102 Grismer and Meiorin place a high evidentiary burden on respondents to prove undue hardship and justify their requirements as BFORs. However, as MacLachlin J. stated in Grismer, the respondent need only establish its justification "according to the relaxed standard of proof on a balance of probabilities." Further, "common sense and intuitive reasoning" have a role to play in the process. However, "there must be some evidence to link the outright refusal of even the possibility of accommodation with an undue safety risk" (at para. 43).

103 Bearing this standard of proof in mind, I must consider whether the evidence before me establishes that Skeena fulfilled its duty to accommodate. That it could have presented better evidence does not mean it has not fulfilled the duty to accommodate as long as the evidence it has presented is sufficient to meet the test for undue hardship on a balance of probabilities. I must assess the factors of cost, impact on the collective agreement, and risk and determine whether they collectively establish undue hardship on a balance of probabilities.

104 The evidence before me establishes that the only way of accommodating Mr. Pannu in the Recaust Operator position is to exempt him from having to perform the emergency shut down and to designate someone else to do it instead. Because of the way the recaust department is staffed, this means that a Utilityman whose job does not ordinarily include this responsibility will have to assume it. In order to achieve its reasonable purpose of minimizing or eliminating additional hazards in an emergency and accommodate Mr. Pannu, Skeena will have to train some Utilitymen and AROs as relief AROs and Recaust Operators. It will necessarily incur some initial and ongoing costs, as there is a high turnover of Utilitymen. The evidence does not show what impact this cost would have on Skeena's general operating costs.

105 If not enough Utilitymen and AROs volunteer for additional training to cover off Mr. Pannu's shifts and/or the Union takes the position that additional compensation is required for the Utilitymen on his shift who will now have increased responsibility for emergency duties whether or not an emergency occurs, the job descriptions will have to be amended. In that event, I would agree with Mr. Vatcher that accommodating Mr. Pannu would be very onerous, necessitating a "substantial departure" from the existing terms and conditions of employment in the collective agreement. The evidence before me only establishes that this is a possible consequence of accommodating Mr. Pannu. Without evidence as to the Union's position or the Utilitymen's willingness to volunteer for additional training, I am not prepared to find undue hardship on the basis of this factor alone.

106 With respect to risk, there is no change in the likelihood of risk. I have found that, even with additional training, there is some real increase in the magnitude of risk. This is because persons with less job experience than Mr. Pannu will be assuming responsibility 25% of the time for the emergency shut down, including the trouble-shooting function that is potentially so important in an emergency. The most significant change that follows accommodating Mr. Pannu is that the person that bears the risk shifts entirely from Mr. Pannu onto someone else.

107 I have reviewed the authorities and have found no case in which accommodating a complainant necessitates shifting a risk to personal safety entirely from the complainant to someone else. Somewhat analogous are the line of disability discrimination cases in which employers seek to justify rules which exclude persons with certain disabilities on the basis that to allow such persons on the job would increase the risk to themselves, other employees and the public. A useful review of the development of the law in this area is found in Cotterall v. Vancouver Police Board (1994), 26 C.H.R.R. D/510 (B.C.C.H.R.). That case concerned a person who was refused employment as a police officer because he did not meet the Police Board's requirement that his uncorrected vision meet a certain standard. Although Mr. Cotterall wore contact lenses and his corrected vision was satisfactory, the Police Board justified its requirement by pointing to the risk that his contact lenses could become dislodged while on the job and increase the risk to himself, other police officers and the public. The Council found that there was a real risk that Mr. Cotterall's lenses could become dislodged while carrying out his policing duties, even though he testified he had never had a lens become dislodged. Noting that policing involves high-risk activities on occasion, such as making arrests and using firearms, the Council found the increase in the magnitude of the risk to Mr. Cotterall, other officers and the public was unacceptable. It held that the Police Board's uncorrected vision standard was a BFOR.

108 From my review of the cases, I conclude that most adjudicators have found job requirements justified as BFORs if allowing the complainant to perform the job would represent a real and significant increase in the magnitude of risk to the complainant and others. Meiorin and Grismer established risk is not an independent justification for a BFOR but merely one factor in the analysis of undue hardship. In this case, the change to risk entailed by accommodating Mr. Pannu includes some increase in the magnitude of risk and, more significantly, a complete shift of that risk from Mr. Pannu to the Utilityman. I am satisfied on the evidence that there is no way to spread this risk or reduce it further. If Mr. Pannu is to work as a Recaust Operator, the Utilityman on his shift must be designated to do the emergency shut down along with the ARO. Weighing the low but real likelihood of a major gas leak and the very high magnitude of the risk, should an emergency occur, I find that the shift in risk from Mr. Pannu to the Utilityman on his shift is both real and significant.

109 Considering the possible substantial impact on the collective agreement, the fact that there is some increase in the magnitude of the risk, and the significant shift in who bears the risk, I find that Skeena has established undue hardship on a balance of probabilities.

110 Since Skeena has established that it is more likely than not that accommodating Mr. Pannu would constitute undue hardship, it has justified its failure to accommodate him by keeping him in the Recaust Operator position. The complaint against Skeena is dismissed.

QL Update: 20001127

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