View cases - Stewart McKelvey

condition can drive safely. That is, allowing such persons to drive would be “totallyincompatible” 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 thisbasis because there was evidence that some jurisdictions permit people with Mr. Grismer’s visualcondition to drive under certain conditions. Further, there was evidence that Mr. Grismer coulduse visual aids to improve his vision. Thus, it could not be said that people with Mr. Grismer’scondition could never drive safely.[60] In the present complaint, by contrast, I find that the WCB has shown that exemptingworkers who wear beards for religious reasons would be “totally incompatible” with the goal ofprotecting workers from exposure to gas contamination. Mr. Steinmeyer’s expert opinion wasthat he found no jurisdiction where beard-wearers are permitted to remain in gas-contaminatedenvironments. The evidence also establishes that there is no known respiratory equipment thatwould allow bearded workers to work in gas-contaminated environments without anunacceptable level of gas exposure (Ex. 3, Tab 4). The Complainant did not take issue with anyof the WCB’s evidence on these points.[61] An exemption might be justified if the increased risk from not being able to wear arespirator was borne by the exempted individual. For example in Dhillon v. B.C. (Min. ofTransportation 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 aturban and not a helmet. The Tribunal found that the mandatory helmet law discriminated againstMr. Dhillon, in part, because the increased safety risk was entirely to himself. However, theincreased safety risk posed by an exemption from Reg 14.23 is not likely to be confined to theexempted individual. Given the range of circumstances in which workers are exposed to gascontaminatedenvironments where SCBAs are necessary, is more likely than not that exemptingbearded 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 becameincapacitated before completing the shut down, the hazard posed by the equipment would not beminimized.15