Ruling (.pdf) - International Center for Law and Religion Studies

whole. Section 24(2) imposes a duty to accommodate to the point of undue hardship,but only in respect of section 24(1)(b). Section 24(1)(a) is not covered by the duty toaccommodate in section 24(2). In my view this is a clear expression of legislative intentnot to require accommodation in respect of the section 24(1)(a) exemption.[170] Meiorin eliminated previous inconsistency and confusion when addressingdirect, as opposed to indirect, discrimination. But nothing in Meiorin suggests the Courtintended the unified approach should override specific statutory language, where theLegislature has turned its mind to the criteria to be used in considering the validity of arequirement or qualification.2008 HRTO 22 (CanLII)[171] Having said this, Christian Horizons cannot rely on Meiorin to modify thelongstanding approach adopted by courts and tribunals in determining whether aqualification is reasonable and bona fide in special employment cases. ChristianHorizons argues the objective and subjective tests used to determine whether aqualification is bona fide and reasonable are similar to the first and second tests inMeiorin. This is incorrect. While the second Meiorin test is similar to the traditionalsubjective test, the first is quite different than the traditional objective test.[172] In special employment cases, courts and tribunals have adopted the two parttest first articulated in Ontario (Human Rights Commission) v. Etobicoke (Borough),[1982] 1 S.C.R. 202. Etobicoke involved the question of whether a mandatoryretirement requirement for firefighters was a bona fide occupational qualification. Thetest articulated by the Court was:To be a bona fide occupational qualification and requirement alimitation, such as a mandatory retirement at a fixed age, must beimposed honestly, in good faith, and in the sincerely held beliefthat such limitation is imposed in the interests of the adequateperformance of the work involved with all reasonable dispatch,safety and economy, and not for ulterior or extraneous reasonsaimed at objectives which could defeat the purpose of the Code.In addition it must be related in an objective sense to theperformance of the employment concerned, in that it isreasonably necessary to assure the efficient and economical50