View cases - Stewart McKelvey

allow such persons on the job would increase the risk to themselves, other employees and thepublic. A useful review of the development of the law in this area is found in Cotterall v.Vancouver Police Board (1994), 26 C.H.R.R. D/510 (B.C.C.H.R.). That case concerned aperson who was refused employment as a police officer because he did not meet the PoliceBoard’s requirement that his uncorrected vision meet a certain standard. Although Mr. Cotterallwore contact lenses and his corrected vision was satisfactory, the Police Board justified itsrequirement by pointing to the risk that his contact lenses could become dislodged while on thejob and increase the risk to himself, other police officers and the public. The Council found thatthere was a real risk that Mr. Cotterall’s lenses could become dislodged while carrying out hispolicing duties, even though he testified he had never had a lens become dislodged. Noting thatpolicing involves high-risk activities on occasion, such as making arrests and using firearms, theCouncil found the increase in the magnitude of the risk to Mr. Cotterall, other officers and thepublic was unacceptable. It held that the Police Board’s uncorrected vision standard was aBFOR.[108] From my review of the cases, I conclude that most adjudicators have found jobrequirements justified as BFORs if allowing the complainant to perform the job would representa real and significant increase in the magnitude of risk to the complainant and others. Meiorinand Grismer established risk is not an independent justification for a BFOR but merely onefactor in the analysis of undue hardship. In this case, the change to risk entailed byaccommodating Mr. Pannu includes some increase in the magnitude of risk and, moresignificantly, a complete shift of that risk from Mr. Pannu to the Utilityman. I am satisfied onthe evidence that there is no way to spread this risk or reduce it further. If Mr. Pannu is to workas a Recaust Operator, the Utilityman on his shift must be designated to do the emergency shutdown along with the ARO. Weighing the low but real likelihood of a major gas leak and thevery high magnitude of the risk, should an emergency occur, I find that the shift in risk from Mr.Pannu to the Utilityman on his shift is both real and significant.[109] Considering the possible substantial impact on the collective agreement, the fact thatthere is some increase in the magnitude of the risk, and the significant shift in who bears the risk,I find that Skeena has established undue hardship on a balance of probabilities.28