View cases - Stewart McKelvey

Health Sciences Assoc. of B.C. v. Campbell Riverand North Island Transition Society Page 23determining whether a prima facie discriminatorystandard is a BFOR [bona fide occupationalrequirement]. An employer may justify the impugnedstandard by establishing on the balance ofprobabilities:(1) that the employer adopted thestandard for a purpose rationallyconnected to the performance of thejob;(2) that the employer adopted theparticular standard in an honestand good faith belief that it wasnecessary to the fulfilment of thatlegitimate work-related purpose;and2004 BCCA 260 (CanLII)(3) that the standard is reasonablynecessary to the accomplishment ofthat legitimate work-relatedpurpose. To show that the standardis reasonably necessary, it must bedemonstrated that it is impossibleto accommodate individual employeessharing the characteristics of theclaimant without imposing unduehardship upon the employer.[44] The appellant concedes the first two stages of theanalysis.[45] The authorities make it clear that reasonableaccommodation is the responsibility of both sides – theemployee and the union on the one hand and the employer on theother. The present case has the added factor of the effect ofMs. Howard’s illness on the issue of accommodation. It is forthe arbitrator to resolve this issue.