View cases - Stewart McKelvey

service itself. He argued I ought not to review the Skeena standard as rigorously as the standardsin Grismer and Meiorin, because those cases concerned qualifying requirements, not standardsthat are part of the job or service itself.[72] Meiorin concerned an aerobic fitness standard that was a condition of a forestfirefighter’s job. Grismer concerned a visual standard that was required to obtain a driver’slicence. In these cases, the issue was whether the qualifying requirement that excluded thecomplainant was a necessary pre-condition to the job of being a competent forest firefighter or tothe activity of driving with the degree of safety expected of all B.C. drivers. The Court foundthat such pre-conditions ought to be scrutinized carefully to ensure that they do not inadvertentlybar people like the complainants from gainful employment or important activities.[73] However, counsel for Skeena submitted that more deference ought to be shown whenreviewing a requirement that comprises part of the job or activity itself. That is, if Ms. Meiorinhad argued she ought to keep her job even though she was less competent than male forestfirefighters, or if Mr. Grismer had argued he ought to get a driver’s licence even though he droveless safely than other drivers, the Court would have reviewed the standard of competent forestfire-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 inissue were qualifying standards and that neither complainant was suggesting that the standards ofcompetent 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 supportfor the proposition that tribunals and/or courts should defer more to employers when reviewing astandard 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 individualcapabilities may be accommodated. Apart from individual testing to determinewhether the person has the aptitude or qualification to perform the work, thepossibility that there may be different ways to perform the job while stillaccomplishing the employer’s legitimate work-related purpose should beconsidered in appropriate cases.18