View cases - Stewart McKelvey

this point by the WCB shows unequivocally that no beard growth is compatible with the safe useof 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 beardedindividuals (Ex. 4, Tab 2). He concluded that the longer the beard growth, the greater theleakage, and “tight-fitting facepieces leak when used by bearded individuals.” Thus, this is not acase where individual testing, of the kind found to be appropriate in Meiorin or Grismer, is apossible accommodation.[56] The only remaining possibility is an exemption. That is, the standard could exemptworkers who wear beards for religious reasons from the 14.23(4) requirement that they be cleanshavenwhere the respirator seals with the face. The effect would be to allow employers torequire such workers to enter gas-contaminated environments at enormously increased personalrisk (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-providerwas the Superintendent of Motor Vehicles who cancelled Mr. Grismer’s driver’s licence becausehe did not meet its vision standard. That standard required all persons with Mr. Grismer’s visualcondition to be denied licences, without exception and without any opportunity for individualassessment. 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 foundthe Superintendent’s standard was “reasonable” rather than “absolute” road safety, since thecurrent driving licence regime necessarily contemplates that some level of risk from driving isacceptable.[58] I find that the purpose of Reg. 14.23 is a reasonably high level of protection fromexposure to gas contamination. Clearly, workers are sometimes exposed to gas-contaminatedenvironments, 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 couldjustify its position that its visual acuity standard could admit of no exception. The first of thesewould be to show that accommodation was impossible because no one with Mr. Grismer’s visual14