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Canadian Judicial Opinions Regarding the Sikh Religious Identity


Dhillon v. British Columbia (Ministry of Transportation and Highways, Motor Vehicle Branch)

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
Avtar Singh Dhillon, complainant, and
Her Majesty in Right of the Province of British Columbia as
represented by the Ministry of Transportation and Highways,
Motor Vehicle Branch, respondent, and
Deputy Chief Commissioner, B.C. Human Rights Commission

[1999] B.C.H.R.T.D. No. 25

British Columbia Human Rights Tribunal
Vancouver, British Columbia
F. Gordon
Heard: March 18-20, 1997.
Decision: May 11, 1999.
(17 pp.)

Appearances:
H.A. Dantzer and D. Boyd, counsel for the complainant.
J. Douglas Eastwood, counsel for the respondent.
Deirdre Rice, counsel for the Deputy Chief Commissioner.

REASONS FOR DECISION THE COMPLAINT

1 On March 8, 1995, Avtar Singh Dhillon (the "Complainant") filed a complaint alleging discrimination against Her Majesty in Right of the Province of British Columbia as represented by the Ministry of Transportation and Highways, Motor Vehicle Branch (the "Respondent") with respect to a service customarily available to the public. The Complainant alleges that he was denied a service customarily available to the public because of his religion, contrary to s. 3 of the Human Rights Act, S.B.C. 1984, c. 22, now s. 8(1) of the Human Rights Code R.S.B.C. 1996, c. 210, as amended (the "Code").

2 In particular, the Complainant alleges that the Respondent discriminated against him by refusing to allow him to take a novice road test on a motorcycle because, as a devout Sikh who wears a turban, he refused to wear a safety helmet as required by ss. 218 (1) and (2) of the Motor Vehicle Act, R.S.B.C. 1979, c. 288 (now R.S.B.C. 1996, c. 318, s. 221) (the "Act"). Section 218 provides that a person who operates or rides as a passenger on a motorcycle without properly wearing a motorcycle safety helmet commits an offence. The Act does not make an exemption for Sikhs who wear turbans.

3 An investigation was conducted into the complaint and, on March 22, 1996, the complaint was referred to a hearing. On March 10, 1997, the Deputy Chief Commissioner of the British Columbia Human Rights Commission gave notice to the Tribunal of his intention to participate as a party in these proceedings pursuant to s. 36(1) of the Code. A hearing was held into the complaint on March 18, 19 and 20, 1997. At the hearing, the Deputy Chief Commissioner made submissions in support of the Complainant's case.

4 A great deal of evidence was called to establish that wearing a turban is a religious requirement and bona fide article of faith for members of the Sikh religion. The Respondent understandably conceded this fact and, therefore, I need not review the evidence here. I have no hesitation in finding that the use of a helmet as required by s. 218 of the Act is irreconcilable with the bona fide religious requirement to wear a turban.

5 The Respondent did not dispute that both road testing and licensing constitute a "service customarily available to the public" within the meaning of s. 8 of the Code. The Respondent further conceded that its refusal to offer the Complainant the opportunity to take a road test because he wore a turban, as required by his religion, established a prima facie case of adverse effect discrimination.

6 Based on these concessions, the only issue before me is whether the Respondent accommodated the Complainant's religious beliefs to the point of undue hardship.

STATUTORY FRAMEWORK

7 Section 8 of the Code provides as follows:

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

(a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or

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

because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex or sexual orientation of that person or class of persons.

8 Section 4 of the Code provides that, where there is a conflict between a provision of the Code and any other enactment, the Code will prevail. This provision codifies pronouncements by the Supreme Court of Canada regarding the interpretive approach to be taken when considering the application of human rights legislation which is considered "...of a special nature, not quite constitutional but certainly more than the ordinary..." (Ontario Human Rights Commission and O'Malley v. Simpson Sears Ltd. (1986), 7 C.H.R.R. D/3102 at D/3105).

9 Human rights statutes must be interpreted liberally and in a manner that advances their fundamental overarching purposes. The purposes of the Code, as set out in s. 2, include the fostering of a society where there are no impediments to full and free participation in the economic, social, political and cultural life of the province, and the elimination of discrimination.

10 Section 218 of the Act provides as follows:

(1) A person who operates or rides as a passenger on a motorcycle without properly wearing a motorcycle safety helmet commits an offence.

(2) For the purposes of subsection (1), a helmet that has, by regulations that may be made by the superintendent, been designated as an approved motorcycle safety helmet, shall be deemed to be a motorcycle safety helmet.

11 Section 218 requires applicants for a motorcycle licence to wear a helmet while taking a road test. The Motor Vehicle Branch will not test or grant a licence to a person who does not wear a helmet while taking the road test.

ACCOMODATION AND UNDUE HARDSHIP

12 The Supreme Court of Canada first introduced the concept of a duty to accommodate in cases of adverse effect discrimination in O'Malley. There, at D/3107, Mr. Justice McIntyre stated:

The duty in a case of adverse effect discrimination on the basis of religion or creed is to take reasonable steps to accommodate the complainant, short of undue hardship: in other words, to take such steps as may be reasonable to accommodate without undue interference in the operation of the employer's business and without undue expense to the employer.

13 In O'Malley, the Court also said that, for the duty to accommodate to arise, the rule must be "rationally connected" to the employment. Neither the Complainant nor the Deputy Chief Commissioner led evidence to dispute the rational connection of s. 218 to a sound social and economic objective - the promotion of road safety - within the Respondent's mandate. I have no hesitation in finding a rational connection between s. 218 and its safety objective.

14 The law relating to the scope of the duty to accommodate to the point of undue hardship was clarified by the Supreme Court in Central Okanagan School District No. 23 et al. v. Renaud (1992), 16 C.H.R.R. D/425. At D/432, the Court said:

More than mere negligible effort is required to satisfy the duty to accommodate. The use of the term "undue" infers that some hardship is acceptable; it is only undue hardship that satisfies this test. The extent to which the discriminator must go to accommodate is limited by the words "reasonable" and "short of undue hardship". These are not independent criteria but are alternate ways of expressing the same concept.

15 The Court went on, at D/432, to say that:

... 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.

16 In Central Alberta Dairy Pool v. Alberta (Human Rights Commission) (1990), 12 C.H.R.R. D/417 (S.C.C.), at D/438, the Court set out the factors relevant to a determination of accommodation to the point of undue hardship:

I do not find it necessary to provide a comprehensive definition of what constitutes undue hardship but I believe it may be helpful to list some of the factors that may be relevant to such an appraisal. I begin by adopting those identified by the Board of Inquiry in the case at bar - financial cost, disruption of a collective agreement, problems of morale of other employees, interchangeability of work force and facilities. The size of the employer's operation may influence the assessment of whether a given financial cost is undue, or the ease with which the work force facilities can be adapted to the circumstances. Where safety is at issue, both the magnitude of the risk and the identity of those who bear it are relevant considerations. This list is not intended to be exhaustive and the results which will obtain from a balancing of these factors against the right of the employee to be free from discrimination will necessarily vary from case to case. (Emphasis added)

17 In Woolverton v. BC Transit (1992), 19 C.H.R.R. D/200, at D/214, the British Columbia Council of Human Rights considered the "magnitude of risk" criterion, set out in Central Alberta Dairy Pool:

While I do not think it is appropriate to incorporate the "sufficiency of risk" test from the BFOR defence, it is my opinion that Wilson J.'s statement that the "magnitude of the risk" (Central Alberta, supra, at D/438) is a relevant consideration in determining undue hardship implies that a certain level of risk may be acceptable in particular circumstances. If this were not the case, there would be no need to consider the magnitude of the risk. Furthermore, if any risk, regardless of the magnitude were to constitute undue hardship, then, as Professor Cummings points out in Mahon, supra, at D/3303, employers whose offices were in highrise buildings would be justified in refusing to employ individuals who use wheelchairs because of the additional risk which the wheelchair users, and possibly others, would bear in the event of a fire.

Relying on the definition of "magnitude" in Webster's Ninth New Collegiate Dictionary (1990), it is my opinion that "magnitude of risk" encompasses both the extent and the size of the risk, which is the possibility of loss or injury. In other words, how extensive, or serious, would the loss or injury be, and what is the likelihood that the loss or injury will occur.

ANALYSIS AND DECISION

18 The magnitude of risk was identified as the central issue in this case and a great deal of evidence was devoted to it. I propose to deal with it prior to addressing the issues concerning the identity of those who bear the risk and financial costs.

Magnitude of Risk

19 The first step in determining the magnitude of risk is an assessment of the "baseline risk," that is, the accepted level of risk that is currently tolerated by the Respondent and by society in general. The baseline risk in this case is the risk associated with the current scheme of motorcycle licencing regulated by the Respondent or, put another way, the risk for motorcyclists who wear safety helmets. As discussed in Woolverton, magnitude of risk is analyzed both in terms of the seriousness of the risk and the likelihood that injury will occur. The second step in determining magnitude of risk is an assessment of the increase to the baseline risk or the "marginal risk" posed by allowing Sikhs who wear turbans to ride motorcycles without helmets. The ultimate question then becomes whether accommodation of this marginal risk constitutes an undue hardship.

What is the Baseline Risk Associated with Helmeted Motorcycling?

(i) Extent or Seriousness of Risk
20 The Respondent's evidence clearly established that a motorcycle is an "inherently unsafe" means of transportation because of its ability to attain significant speeds, its dependence on two wheels for stability and its lack of a "protective cocoon" afforded by other motor vehicles. Even at moderate speeds, a helmeted rider involved in an accident is susceptible to severe injuries or death. The Complainant's evidence did not contravert the high-risk nature of motorcycling.

21 The Respondent called Dr. Higenbottam to testify regarding the serious nature of brain injuries and the incidence of traumatic brain injury in the health system. Dr. Higenbottam is a neuropsychologist and Vice-President of Rehabilitation for BC Rehab. He is also responsible for the Acquired Brain Injury Program at GF Strong Centre and George Pierson Centre, which are responsible for caring for persons suffering from brain injuries.

22 Dr. Higenbottam estimated that 4,115 patients are admitted annually to hospital for traumatic brain injury which includes any injury resulting from a blow to the head. Of these, 3,312 patients will suffer mild injuries. Three hundred and sixty two patients will suffer moderate injury and 442 patients will be admitted for severe brain injury.

23 The seriousness of traumatic brain injury cannot be dismissed. Dr. Higenbottam described how traumatic brain injury affects brain functions. Injuries involving areas of the brain responsible for motor functions may result in weakness or paralysis. Injury involving the sensory functions may cause loss of sensation and/or loss of the ability to recognize objects. Injury to the intellectual or cognitive functions may impair judgement, memory, ability to concentrate and emotional stability. Usually, the more serious the injury, the more serious the medical consequences.

24 Dr. Higenbottam testified that traumatic brain injury is often responsible for significant personality changes. He also said that research suggests a statistical link between brain injury and criminality. Persons suffering from traumatic brain injury generally have fewer employment opportunities and often require vocational retraining.

25 It is undisputed that, with respect to the seriousness of risk, the baseline risk associated with helmeted motorcycling is serious injury resulting in, among other things, coma, paralysis or death.

(ii) Likelihood of Risk
26 Ann Guinchard, the senior traffic safety researcher with the Motor Vehicle Branch, testified with respect to the relative risks associated with various modes of transportation. Her evidence confirmed that the relative rates of injury and fatality for motorcyclists are higher than those for cyclists and motor vehicle occupants. However, in absolute terms, the statistics indicate that motorcyclists account for a small proportion of the annual injuries and deaths for all road users. Motor vehicle occupants account for the vast majority of injuries (87.5 percent), while bicyclists account for a greater proportion of total injuries (4 percent) than motorcyclists (2.5 percent). However, motorcylists account for 4.9 percent of fatalities while bicyclists account for only .9 percent. The evidence suggests that a motorcyclist is twice as likely to die as to be injured in an accident.

27 Using Vital Statistics Branch statistics from 1989 to 1993, Ms. Guinchard compared the relative rates of hospitalization, brain/head injury hospitalization and fatality for various modes of transportation. The statistics indicated that for every 100,000 motorcycles there were 60 deaths, while for every 100,000 bicycles, there were 1.5 deaths. For every 100,000 registered vehicles, there were 20 deaths. The number of persons hospitalized for every 100,000 motorcycles was 1340, for bicycles, it was 35, and for all road users, it was 300. For every 100,000 motorcycles, 190 motorcyclists required hospitalization due to head/brain injury. Thirteen bicyclists and 60 road users per 100,000 of the total registered vehicles required hospitalization for brain/head injuries.

28 These statistics clearly reveal that the rate of death and of hospitalization for all types of injuries is significantly higher for motorcycle users than for all other road users. In fact, a motorcyclist is 3.2 times more likely than the occupant of a motor vehicle, and 15 times more likely than a bicyclist, to sustain brain/head injuries requiring hospitalization. The value of these comparative rates is diminished to some extent because the rates for bicyclists were based on self-reported data from Statistics Canada that Ms. Guinchard did not consider particularly reliable. Even allowing for some degree of unreliability, I am satisfied that the evidence before me establishes that motorcycling is a substantially riskier activity than bicycling or travelling by motor vehicle. I am also satisfied that the brain injury (190/100,000) and fatality (60/100,000) rates for motorcyclists, which are based on Motor Vehicle Branch licence data, are sufficiently reliable to establish the baseline risk for helmeted motorcycling with respect to likelihood of risk.

The Marginal Risk Associated with Unhelmeted Motorcycling

29 Marginal risk is the increased risk associated with non-helmeted motorcycle riding by Sikhs who wear turbans. Determining marginal risk involves comparing the risk associated with helmeted motorcycling with the risk associated with non-helmeted motorcycling. This involves examining the evidence relating to the effectiveness of safety helmets.

30 The Respondent called Dr. Jocelyn Pedder to testify as an expert in the field of motorcycle safety, trauma prevention and the effectiveness of injury prevention systems, including all forms of motorcycle safety helmets. Dr. Pedder's 1995 report, entitled "Research and Legislative Review to Support an Improved Regulation for Motorcycle Helmet Wearing in British Columbia" (the "Pedder Report"), was filed as Exhibit 10. The Report's principal findings with respect to helmet effectiveness are summarized as follows:

- Motorcycle safety helmets are effective in decreasing the incidence and severity of head injuries in survivable impacts. Studies of helmeted riders show that helmets afford good head protection within the limitations of correct helmet usage, the impact circumstances and the performance capabilities of the helmet.

- Among motorcycle accident survivors, the incidence of severe head injury is almost 3 times as high for unhelmeted motorcyclists as it is for helmeted motorcyclists.

- A motorcycle helmet that meets the performance requirements of recognized standards remains the single most effective protective feature to reduce the risk and severity of injurious head impacts in motorcycle crashes.

- The only detailed study of the effectiveness of mandatory motorcycle helmet legislation in Canada was conducted in Manitoba in 1987. The study revealed a 32 percent decrease in the incidence of motorcyclist head injuries, which was attributed to increased helmet use.

31 Dr. Pedder also adopted the findings of a report entitled "Highway Safety: Motorcycle Helmet Laws Save Lives and Reduce Cost to Society" prepared for the General Accounting Office, United States of America (the "American Report") (Exhibit 11). The American Report reviewed the findings on helmet effectiveness in 46 other studies and concluded that fatality rates for helmeted riders are 25 to 73 percent lower than for non-helmeted riders. In non-fatal accidents, helmet use reduced the incidence of severe and critical head injuries by 46 to 85 percent.

32 Although Dr. Pedder maintained that safety helmets are "the single most effective protective system or injury prevention system available to motorcyclists," she agreed that there are limits to their protective capabilities. In less severe crashes, helmets generally succeed in reducing the level of impact to a survivable range. However, in severe crashes, the impact to the head may be so violent that the helmet is not able to reduce the severity of the impact to a tolerable level. She testified that the majority of survivable injury-producing crashes are at speeds lower than 50 kilometres an hour. There was no evidence before me that motorcycles are restricted to lower speeds than other road users.

33 Because helmet effectiveness is also dependent on a proper fit, Dr. Pedder stated that she was unaware of any helmet that might be used effectively in conjunction with a turban. She rejected the Complainant's suggestion that a turban provides some degree of protection from head injury. In this regard, she referred to a 1984 study conducted in India by D. Kothiyal Mohan, entitled "Helmet and Head Injury Study of Crash Involved Motorcyclists in Dehli," which confirmed her view that turbans provide no real protection against head injury.

34 The Complainant filed an article entitled "Self-Insurance: The Case of Motorcycle Helmets" (1996), 63:2 Journal of Risk and Insurance 213 (Exhibit 7E, Tab 2). The author, Jonathan P. Goldstein, Associate Professor in the Department of Economics at Bowdoin College, stated that:

... I have shown that, although helmets reduce head injuries at almost all realistic crash speeds, past a critical impact velocity (13.5 mph) to the helmet, helmets exacerbate the severity of neck injuries (Goldstein, 1986, 1988). Beyond this critical speed, the energy-absorbing ability of the helmet is surpassed and inertial and post-impact responses of the neck are intensified due to the added mass of the helmet. Thus, the loss-reduction productivity of helmet expenditures declines when helmet impact speeds exceed 13.5 mph... .

35 The Pedder Report addressed arguments against helmet use, including the potential for an increase in neck injuries, and found little support for this theory. One study, referred to in the Pedder Report, found that skull base fractures in the helmeted population were significantly lower compared with the non-helmeted population. I am, therefore, not persuaded that the increase in neck injury, referred to by Professor Goldstein, should be taken into account in assessing helmet effectiveness. On the basis of the evidence before me, I am satisfied that safety helmets are 25 to 73 percent effective in reducing fatalities and 46 to 85 percent effective in reducing the incidence of severe head injuries, as stated in the American Report.

36 Although counsel, in their submissions, did not endeavour to interpret this data or to quantify the actual marginal risk, the evidence is sufficient for me to develop an estimate, however approximate, of the marginal risk associated with accommodation in this case.

37 I have accepted Ms. Guinchard's evidence that, during the period when mandatory helmet laws were in effect, an annual average of 34 motorcyclists (or 60 motorcyclists per 100,000 motorcycles) were killed in accidents, while 106 motorcyclists (or 190 motorcyclists per 100,000 motorcycles) were hospitalized for brain/head injuries. I also accept Ms. Guinchard's evidence that, in 1991, Sikhs represented 2,271 out of every 100,000 people in British Columbia, or 2.271 percent of the total population. For the purposes of the calculations, I assume that motorcycle use among the Sikh population will be the same as that among the general population.

38 Extrapolating from these total population figures, therefore, it appears that if Sikhs were to operate motorcycles with helmets, there would be an annual average of .77 deaths and 2.40 brain injuries among the Sikh population. Because 9 percent of riders are women, the annual average of deaths among Sikh men would be .7 and the annual average of brain/head injury among Sikh men would be 2.16.

39 What then is the marginal risk associated with exempting the Complainant and other Sikhs who wear turbans from the requirement to wear a safety helmet? No evidence was called regarding the percentage of the Sikh population that wears turbans. Therefore, the calculations of marginal risk are based on the assumption that all Sikh men wear turbans, which will result in an overstatement of the risk. The calculation of marginal risk will also be overstated to some extent since the baseline risk is based on a population of motorcyclists required to wear helmets, but whose compliance with the law was only 94%, according to Dr. Pedder.

40 I have accepted that safety helmets are effective in reducing the incidence of fatality by between 25 and 73 percent and the incidence of brain injury by between 46 and 85 percent. Applying these numbers to the baseline fatality rate (.0006) and baseline brain injury rate (.0019), cited above, exempting turban-wearing Sikhs from the helmet requirement would increase the fatality rate to between .0008 (75% of x = .0006) and .0022 (27% of x = .0022), while the rate of brain injury would increase to between .0035 (54% of x = .0019) and .0126 (15% of x = .0019).

41 In the result, the marginal increase in the annual fatality rate would be between .02 percent and .16 percent, while the marginal increase in the annual brain/head injury rate would be between .16 percent and 1.07 percent. Thus exempting Sikhs from the helmet requirement would have the effect of increasing the average number of motorcyclist deaths per year from 34 up to a maximum of about 36.58, less than two of which would result from not wearing a helmet, and increasing the average number of head injuries from 106 to a maximum of between 110 and 121 brain injuries, between 2 and 13 of which would result from not wearing a helmet.

Does the marginal risk constitute undue hardship?

42 The acceptability of risk can only be determined by comparing the risk in question against other tolerable or accepted risks. To acknowledge the relative nature of acceptable risk is to recognize that few, if any, human activities or endeavours are risk-free. In our modern epoch, virtually every aspect of daily life continuously exposes us to risk of harm, whether in the foods we consume, the modes of transport we use, the work we perform, or the recreational activities we pursue. In light of this, it would be illogical, and contrary to the fundamental purposes of human rights legislation, to conclude that any increase in risk satisfies the duty to accommodate to the point of undue hardship.

43 The ubiquitous nature of risk was expressed in Woolverton, supra, at D/217:

There is a risk involved in driving a car or flying an airplane. Whatever the statistical probability of death or serious injury occurring, millions of people continue to drive their cars and fly in airplanes. As a society, we are willing to accept these risks, and many others.

44 In Renaud, supra, the court found that more than "minor interference or inconvenience" must be shown to establish undue hardship. In the context of road safety, this recognizes that reasonable accommodation may result in increased numbers of fatalities and injuries if full effect is to be given to the objectives of the human rights legislation. At what point, then, does a tolerable and accepted risk become unacceptable?

45 Are there comparable risks that are currently accepted by the Respondent? The Complainant argued that the helmet exemptions for bicyclists provide some measure of comparison. I do not find the analogy helpful because the statistics clearly show that the rate of injury and fatality for motorcyclists is significantly higher than the rates for bicyclists. The most obvious comparable risk is that associated with helmeted motorcycling. The Respondent licences motorcycles which have a fatality rate 3 times greater than the rate for all road users and a brain injury rate of more than 3 times as great as that for all road users. The marginal risk associated with allowing turban-wearing Sikhs to ride without a helmet - up to 2 deaths per year and up to almost 13 head injuries per year - must be assessed in light of the accepted rate of 34 deaths and 106 injuries per year for helmeted riders. Clearly, in licensing helmeted motorcycling, the Respondent, is not governed by a policy of "zero tolerance" for injury and death.

Who Bears the Risk?

46 In Central Alberta Dairy Pool, at D/438, Wilson J. said, "Where safety is at issue both the magnitude of the risk and the identity of those who bear it are relevant considerations." The Respondent conceded in its submissions that the Complainant bears a "substantial portion" of the safety risk associated with riding a motorcycle without a helmet. No evidence was called to suggest that, by not wearing a helmet, the Complainant would pose a safety risk to anyone but himself. This is a significant concession. To the extent that the Complainant, and other riders wearing turbans, might create an increased safety risk by declining to wear a helmet, they bear the direct risk of injury and death themselves. Therefore, I find that the Respondent has not discharged the onus on it to demonstrate that the risk, passed to other members of the public by unhelmeted Sikh motorcyclists constitutes undue hardship.

Conclusion on Risk

47 It is clear from the evidence that, without safety helmets, what is already a high risk activity, in terms of its extent and size, becomes a higher risk activity. However, based on my assessment of marginal risk, the identity of those who bear the risk, and the nature of the fundamental right infringed, I am not persuaded that the increased risk associated with non-helmeted motorcycling is so substantial that it constitutes undue hardship.

Does the Increase in Costs Constitute Undue Hardship?

48 Even if the increased risk to the Complainant or the public associated with non-helmeted motorcycling does not constitute undue hardship, the resulting medical costs may constitute undue hardship. The Respondent submitted that, if an exemption to the Act were adopted, the general public would face a significant increase in health care costs, exposure to civil and criminal liability, and other social costs. The Respondent further submitted that the issue of costs was a "red herring" because the Tribunal was not in a position to determine what increase in costs would be intolerable. Given the Supreme Court of Canada's decision in Central Alberta Dairy Pool, where Wilson J., at D/438, explicitly stated that the size of the respondent's operation was a relevant consideration in evaluating, inter alia, the cost of accommodation, I am satisfied that the Tribunal must assess costs to determine whether the Respondent has established undue hardship.

49 The Respondent did not present evidence on medical costs for head injuries and fatalities specifically related to motorcycling accidents. Rather, the evidence before me consisted of estimates of costs associated with traumatic brain injury resulting from all types of accidents including those related to various modes of transportation. Although Dr. Higenbottam admitted that it was difficult to assess the total cost of brain injury in the province, he estimated that the annual provincial budget for all traumatic brain injury was 650 million dollars, based on the expected provincial allocation from the federal budget of 4 billion dollars. He estimated that the annual budget for the GF Strong Centre and the Acquired Brain Injury Program was approximately 6 million dollars each. He estimated, by dividing the total cost by the number of in-patients, that the average annual cost in 1996 for each brain injured in-patient at GF Strong was approximately 80,000 dollars. Dr. Higenbottam was unable to provide information regarding costs for brain injury in context of the overall provincial health care budget.

50 Dr. Higenbottam testified that, of the 442 patients admitted for severe brain injury annually, 154 require in-patient rehabilitation. These patients require a total of 8,465 rehabilitation days and 23 rehabilitation beds annually. Thirty-two of the severe-injury category require long term coma management. Of the 362 patients with moderate injuries, 225 require inpatient rehabilitation, totalling 6,760 rehabilitation days and 19 beds each year. The estimated number of patients admitted for mild injuries is 3,312. Of these, 2,981 do not require rehabilitation, and 331 require outpatient rehabilitation only. Based on the above figures, I find that, .05 rehabilitation beds are required annually for each severely brain-injured patient.

51 Although counsel did not attempt to calculate the marginal increase in financial costs, I am able to use the evidence to calculate approximate rehabilitation costs based on the additional number of brain injured motorcyclists resulting from allowing turban-wearing Sikhs to ride without helmets. For the purposes of this calculation, I assume that a maximum of 13 additional brain/head injured patients enter the medical system each year, up from the baseline of 106 persons. I also assume that each patient suffers from severe head injuries and that, therefore, each patients will require .05 rehabilitation beds annually. Therefore, for 13 additional patients, .65 additional rehabilitation beds will be required. If I interpret Dr. Higenbottam's evidence that each in-patient at GF Strong costs 80,000 dollars per year, the additional costs for in-patient rehabilitation beds would be approximately 52,000 dollars annually. The evidence is that the total provincial budget for traumatic brain injury is 650 million dollars annually.

52 Does the evidence before me establish that the increased costs are the equivalent of "a minor interference or inconvenience" or are they substantial enough to uphold a rule that is prima facie discriminatory? In answering this question, I must bear in mind that the protection of fundamental rights is usually accompanied by costs, either financial or otherwise. There is a cost associated with making buildings wheelchair accessible for persons with disabilities. There is also a cost associated with ensuring that women have equal access to employment opportunities. The present case is not unique in this regard.

53 Having regard to the small proportion of additional head and brain injuries and the fact that the Respondent already accepts the baseline costs associated with helmeted riding, it is difficult to see how the additional costs could constitute undue hardship. Even if I am wrong in approximating the costs, the Respondent has failed to present sufficient evidence to prove undue hardship.

SUMMARY OF DECISION

54 I have concluded that the marginal risk and costs associated with unhelmeted motorcycle riding does not constitute undue hardship. I have also found that the unhelmeted rider alone bears the risks associated with riding a motorcycle without a helmet. In coming to this decision, I have considered the evidence that clearly establishes a societal acceptance of the high-risk threshold associated with helmeted motorcycling. If this were not so, motorcycles would not be licensed under the Act. Therefore, the question is not whether non-helmeted motorcycling is more dangerous and, therefore, more costly than helmeted motorcycling. Clearly it is. The question is whether the marginal risk and the costs associated with non-helmeted riding are so significant that they constitute undue hardship. In my view, they are not.

55 In summary, I find that the complaint is justified. The Respondent discriminated against the Complainant by not accommodating his bona fide religious belief contrary to s. 8 of the Code. I further find that, by not providing an exemption for members of the Sikh religion, the applicable provisions of the Act discriminate against members of the Sikh religion who wear turbans as a bona fide article of their faith.

REMEDY

56 The Complainant requested only the following remedies which are required by the Code upon a finding of discrimination. Pursuant to s. 37 (2) (a) and (b) of the Code, I declare that s. 218 of the Act is discriminatory and I therefore order that the Respondent cease the contravention or any similar contravention and refrain from committing the same or a similar contravention.

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