Alberta Human Rights Commission v. Central Alberta
Dairy Pool
David Baker
After an uncharacteristic pratfall’
in Bhinder v. Canadian National
Railway,2 the Supreme Court of Canada, in Alberta Human Rights Com-
mission v. Central Alberta Dairy Pool,’ has picked itself back up. Had it
survived, the Bhinder case would have decided that there is no duty to
accommodate the special circumstances of disadvantaged groups in the
human rights legislation of most Canadian jurisdictions. Group after group
pointed to this potentially disastrous consequence. At one point, it had
appeared that the Bhinder decision would be reversed legislatively.4 Before
this happened, however, the Supreme Court chose to address the matter itself.
Bhinder has been overturned, and the Court has resumed the search for a
distinctively Canadian theory of equality, based on respect for diversity’
*B.A., LL.B., LL.M., Barrister and Solicitor, Advocacy Resource Centre for the Handicapped,
Bhinder cited to S.C.R.].
Toronto.
McGill Law Journal 1991
Revue de droit de McGill
‘For a discussion of how the Court deviated from a path of its own choice, see D. Baker, “The
Changing Norms of Equality in the Supreme Court of Canada” (1987) 9 Sup. Ct. L. Rev. 497 at
544-51.
2Bhinder v. Canadian National Railway, [1985] 2 S.C.R. 561, 23 D.L.R. (4th) 481 [hereinafter
3Alberta Human Rights Commission v. CentralAlberta Dairy Pool, [1990] 2 S.C.R. 489 at 512,
Wilson J., and at 526, Sopinka J., 6 W.W.R. 193 [hereinafter Alberta Dairy Pool cited to S.C.R.].
The day following the release of the Supreme Court’s judgment in Bhinder, the Minister of Jus-
tice, John Crosbie, announced in Parliament that he would review the need to amend the Canadian
Human Rights Act, S.C. 1976-77, c. 33. Repeated calls were made to reverse Bhinder legislatively:
Canadian Parliamentary Committee on Equality Rights, Equality ForAll (Ottawa: Queen’s Printer,
1985) at 130-31; Canadian Human Rights Commission, Special Report to Parliament on the
Effects of the Bhinder Decision on the Canadian Human Rights Commission (Ottawa: The Com-
mission, 1986); Canada, Department of Justice, Toward Equality (Ottawa: Communications and
Public Affairs, Dept. of Justice, 1986) at 63. There followed repeated promises of action by suc-
cessive Justice Ministers but to date, no Bill making the necessary changes has been introduced
in Parliament.
5The classic Supreme Court statements regarding pluralism are contained in the case of R. v. Big
M Drug Mart Ltd., [1985] 1 S.C.R 295 at 337, 18 D.L.R. (4th) 321, Dickson J., regarding s. 2 of
the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule
B of the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Charter].
What may appear good and true to a majoritarian religious group, or to the state acting
at their behest, may not, for religious reasons, be imposed upon citizens who take a
contrary view. The Charter safeguards religious minorities from the threat of “the tyr-
anny of the majority.”
1991]
CASE COMMENTS
1451
and the relief of disadvantagement.6
This comment will first examine earlier human rights case law in this area
and then look in greater detail at the Alberta Dairy Pool decision itself.
I. Prior Jurisprudence
Over the last ten years, the Supreme Court of Canada has developed a con-
ceptual framework for analyzing issues of discrimination. This framework has
proven very useful in reducing to a formula the value-laden assumptions about
what equality means in a Canadian context. Each element in the formula has
been shaped and re-shaped in successive cases to take into account additional
assumptions.
The first major decision in this series was the Etobicoke Firefighters case.7
At issue was whether the “bona fide occupational qualification” (B.F.O.Q.)s
defence was available to a fire department which sought to justify a policy of
mandatory retirement of firefighters at age 60, on the basis that older persons
posed a safety hazard. While the employer’s motives were acknowledged to be
honest and in good faith, the Court held that the evidence adduced did not sup-
port a finding that the age criteria were necessary to achieve the safe and effi-
cient performance of the firefighters’ duties. The Court established a twofold
test for determining whether a distinction drawn on the basis of a protected cat-
egory constitutes a B.F.O.Q. and therefore is permissible. The test required both
a non-discriminatory intent, and that the distinction drawn
be related in an objective sense to the performance of the employment concerned,
in that it is reasonably necessary to assure the efficient and economical perform-
ance of the job without endangering the employee, his fellow employees and the
general public.
and at 347:
The equality necessary to support religious freedom does not require identical treat-
ment of all religions. In fact, the interests of true equality may well require differen-
tiation in treatment.
6See, e.g., Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, 56 D.L.R. (4th)
1, accepting arguments advanced on behalf of the Coalition of Provincial Organizations of the
Handicapped (C.O.P.O.H.) and the Women’s Legal Education and Action Fund (L.E.A.F.) as inter-
venors; W. Black & L. Smith, “The Equality Rights” in G.-A. Beaudoin & E. Ratushny, eds, The
Canadian Charter of Rights and Freedoms, 2nd ed. (Toronto: Carswell, 1989) at 557; J.H. Ely,
Democracy and Distrust (Cambridge, Mass.: Harvard University Press, 1980); P. Monahan, The
Charter, Federalism and the Supreme Court of Canada (Toronto: Carswell, 1987).
7Ontario Human Rights Commission v. Etobicoke (Borough ofl, [1982] 1 S.C.R. 202, 132 D.L.R.
(3d) 14 [hereinafter Etobicoke Firefighters cited to S.C.R.].
8B.F.O.Q. is a statutorily created defence to a charge of discrimination. It is “equivalent and
coextensive” with “bona fide occupational requirement” (B.F.O.R.): Alberta Dairy Pool, supra,
note 3 at 502, Wilson J.
9Supra, note 7 at 208.
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[Vol. 36
Etobicoke Firefighters was followed by O’Malley.” In the latter case, the
complainant was unable to work on Saturdays because her religion prohibited
it, which led to her termination by the respondent. The employer’s policy, which
required its workers to work on Saturdays, was found not to be maliciously
motivated, and represented a rational effort to achieve legitimate business
objectives. The Ontario Human Rights Code” at that time contained no
B.EO.Q. defence in cases of religious discrimination. Thus, if the policy was
discriminatory, it violated the Code. The Supreme Court concluded that “dis-
crimination” included not only “direct discrimination” (i.e., differential treat-
ment based on a ground prohibited by the Code), but also adverse effect dis-
crimination (i.e., differential effect because of some special characteristic linked
to a prohibited ground).’ The Court found Mrs. O’Malley had suffered adverse
effect discrimination because her employer’s policy conflicted with her reli-
gious beliefs. The Court went on to say that positive steps must be taken by the
employer to avoid such adverse effects, unless making such an “accommoda-
tion” would impose an “undue hardship” on the employer. Because the
employer in O’Malley had chosen not to call any evidence in support of a claim
of “undue hardship,” the Court was not compelled to precisely define the extent
of the duty to accommodate. The employer was required to accommodate Mrs.
O’Malley’s religious beliefs when scheduling its work week.
Heard and decided together with O’Malley was the Bhinder case. Bhinder
was also viewed by the Court as a case of adverse effect discrimination. The
complainant, a Sikh who wore a turban as part of his religious observance, was
unable to comply with a company policy requiring that hardhats be worn on the
job. The Court held that unlike Ms. O’Malley, Mr. Bhinder was not entitled to
an accommodation because the Canadian Human Rights Act 3 contained a
“bona fide occupational requirement” (B.F.O.R.) defence.
The words of the Statute speak of an “occupational requirement.” This must refer
to a requirement for the occupation, not a requirement limited to an individual. It
must apply to all members of the employee group concerned because it is a
requirement of general application concerning the safety of employees. The
employee must meet the requirement in order to hold the employment. It is, by its
nature, not susceptible of individual application. 14
By focusing exclusively on the question of whether the employer’s rule was rea-
sonable, the Court ruled that a B.F.O.R. defence precluded any duty to consider
whether non-discriminatory alternatives were open to the employer. No balanc-
‘0Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R.
536, 23 D.L.R. (4th) 321 [hereinafter O’Malley cited to S.C.R.].
“Ontario Human Rights Code, R.S.O. 1980, c. 340.
12Supra, note 10 at 551.
13Canadian Human Rights Act, R.S.C. 1985, c. H-6.
4Supra, note 2 at 588-89, McIntyre J.
1991]
CHRONIQUE DE JURISPRUDENCE
1453
ing was required between the legitimate goals of the employer and those of the
employee. As a consequence, virtually the only rule which would not be found
to be a B.F.O.R. would be one which was maliciously contrived for the sole pur-
pose of discriminating. The result in Bhinder thus conflicted with the objective
of removing unintentional discrimination, articulated in the “business necessity”
component of the B.F.O.Q. defence in Etobicoke Firefighters, and with the
desire to prohibit adverse effect discrimination evident in O’Malley.
It did not take the Court long to realize it had gone too far. In Brossard v.
Quebec Commission des droits de la personne,15 an anti-nepotism by-law pre-
cluding the simultaneous employment of spouses by a municipality was chal-
lenged as being discrimination based on marital status. The Court restated the
B.F.O.Q. standard it had established in the Etobicoke Firefighters case, but went
on to point out that the legitimate societal goal of avoiding discrimination
requires that an employer asserting a B.F.O.Q. defence be required to prove the
reasonableness, not only of the objective of the rule, but also of the means cho-
sen to accomplish it.16
The Court went even further in the Saskatoon Firefighters case. 17 The facts
differed from those of Etobicoke Firefighters only in that the onus of establish-
ing the causal connection between age and safety risk was met by the employer
to the Court’s satisfaction. The Court outlined when an employer could say it
was using reasonable means to achieve reasonable ends:
While it is not an absolute requirement that employees be individually tested, the
employer may not satisfy the burden of proof of establishing the reasonableness
of the requirement if he fails to deal satisfactorily with the question as to why it
was not possible to deal with employees on an individual basis by, inter alia, indi-
vidual testing. If there is a practical alternative to the adoption of a discriminatory
rule, this may lead to a determination that the employer did not act reasonably in
not adopting it.18
While the circumstances when an employer will be relieved of its responsibility
to assess the capacity of its employees on an individualized basis was not
15Brossard (Ville de) v. Quebec Commission des droits de la personne, [1988] 2 S.C.R. 279, 53
D.L.R. (4th) 609 [hereinafter Brossard cited to S.C.R.].
161bid. at 311-12 where the second of the two part test states:
(2) Is the rule properly designed to ensure that the aptitude of qualification is met with-
out placing an undue burden on those to whom the rule applies? This allows us to
inquire into the reasonableness of the means the employer chooses to test for the pres-
ence of the requirement for the employment in question.
The language used is remarkably similar to that used to describe the s. 1 test under the Charter.
See, e.g., R. v. Oakes, [1986] 1 S.C.R 103, 26 D.L.R. (4th) 200.
17Saskatchevan Human Rights Commission v. Saskatoon, [1989] 2 S.C.R. 1297, 65 D.L.R. (4th)
481 [hereinafter Saskatoon Firefighters cited to S.C.R.].
181bid. at 1313-14.
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[Vol. 36
defined with specificity, the Court did make it clear that the employer would be
required to bear a heavy onus.
So far so good. Maliciously motivated discrimination is clearly on the run
or has at least been driven underground (Etobicoke Firefighters). Damaging
stereotypes can be challenged by persons who feel their individual abilities are
going unrecognized (Saskatoon Firefighters). Consequently, differences
between people which should be irrelevant and therefore disregarded have been
adequately addressed. The Court had even gone a step further in O’Malley: it
had recognized that superficially neutral practices could be discriminatory.
There remained, however, the vexing problem of determining when differences
should be taken into account in fashioning remedies for discriminatory
practices.
II. The Relevance of Difference
In cases where differences are in fact relevant, discrimination results not
from overreacting to the difference but from falling to take it into account.
Customs associated with minority religions, such as those of Seventh Day
Adventism practised by Mrs. O’Malley, are one example. Examples of differ-
ences which may be relevant to decisions about whether discrimination has
occurred include mental and physical disabilities; the fact that only women may
become pregnant; a history of discrimination, such as the disadvantagement
experienced by some ethnic minorities within the education system; or a set of
collective values at variance with those of the majority, such as the choice of
aboriginal people to engage in self-government or an indigenous economy.
Accepting that such differences exist, and that failing to take them into
account can produce disadvantagement, does not answer the vexing question of
how to remove these systemic barriers. 9 Attempts to take differences into
account risk producing inappropriate responses which compound, rather than
remove, these barriers.
Prior to the Alberta Dairy Pool case, the Court had only begun to confront
this issue. In O’Malley, an employee sought an adjustment so that the demands
of her work and her religion would be compatible. She did not expect the
19Canadians have generally been receptive to systemic remedies to inequality. No serious chal-
lenge has been brought to the validity of affirmative action which advances the interests of disad-
vantaged groups. Even before the enactment of legislative or Charter defences to charges of
reverse discrimination, the Supreme Court of Canada had recognized its importance in achieving
equality. See Re Athabasca Tribal Council and Amoco Canada Petroleum, [1981] 1 S.C.R. 699,
6 W.W.R. 342; Canada, Royal Commission on Equality in Employment, Report of the Commission
on Equality in Employment (Commissioner: R. Abella) (Ottawa: The Commission, 1984); Action
travail desfemmes v. Canadian National (1984), 5 C.H.R.R. D/2327 (Cdn. H.R. Trib.); Employ-
ment Equity Act, R.S.C. 1985, 2nd Supp., c. E-23.
1991]
CASE COMMENTS
1455
employer to change the days it opened, only the work schedules of its employ-
ees. Absent evidence to the contrary, the Supreme Court assumed that this
accommodation could be accomplished without undue hardship to the opera-
tions of the employer. The employer was therefore required to accommodate the
employee by restructuring work schedules to permit her to respect the tenets of
her religion.
Similarly in Bhinder, there was no suggestion of requiring that the
employer restructure its work so that it could be performed in a safer fashion,
thereby obviating the need for its employees to wear hardhats. Such a change
would have made Mr. Bhinder’s turban irrelevant to the employer’s legitimate
business interests. Instead, the case focused on the marginally greater risk of
injury Mr. Bhinder would face if he wore a turban instead of a hardhat.
The Supreme Court refused leave to appeal in two other cases in which the
issue of relevant differences arose. Had leave been granted, the Court would
have been confronted with the question of what would represent equality in cir-
cumstances where such differences exist. In the Blainey case,2′ a young girl
sought and ultimately won the right to play hockey in a league which had pre-
viously been restricted to boys. The Ontario Court of Appeal struck down a pro-
vision of the Ontario Human Rights Code which exempted organized sports
from its provisions. Subsequently, a Board of Inquiry2 held that the complain-
ant was not different in any relevant way from the boys against whom she
sought to compete, overruling in the process the wishes of the majority of
women hockey players who wanted to maintain separate leagues. The Ontario
Women’s Hockey Association wanted the Board to recognize that women were
engaged in a distinct game which should be entitled to equal support and rec-
ognition. Instead, the Board granted women the right to compete against men.
The Board went on to state that women would be permitted to continue to play
in a segregated league because the inferior status accorded to the women’s game
justified its preservation as affirmative action. This result could serve to legit-
imize and hence perpetuate this inferior status.’ The Blainey case posed two
fundamental questions which the Supreme Court, by refusing leave, chose to
defer:
2Re Blainey and Ontario Hockey Association (1986), 54 O.R. (2d) 513, 26 D.L.R. (4th) 728
(C.A.) [hereinafter Blainey]. Leave to appeal to the Supreme Court of Canada was refused.
21Blainey v. Ontario Hockey Association (1987), 9 C.H.R.R. D/4549 (Ont. Bd. of Inquiry)
(Chair: I. Springate).
22It may at some point be argued that a women’s league will be barred from complaining about
the superior resources (i.e., ice time, equipment, etc.) allocated to the integrated league because of
the wording of a statutory affirmative action or special programs clause such as the Ontario Human
Rights Code, 1981, S.O. 1981, c. 53, s. 13(1).
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[Vol. 36
1) Was the inequality experienced by female hockey players a product of
lack of integration into the men’s game, or of the dominant status enjoyed by
men’s hockey in relation to women’s hockey?
2) What role should other members of a disadvantaged group play in defin-
ing the goal of equality under consideration in an individual case?
The Huck case” involved a disabled person who used a wheelchair to
enhance his mobility. While he was able to enter the respondent’s movie theatre,
he was unable to sit with the person who accompanied him. In fact, he was told
he would have to suffer the embarrassment and discomfort of being seated alone
and in front of the rest of the audience. The Saskatchewan Court of Appeal held
that the failure to provide a choice of places from which persons in wheelchairs
could view the movie, which was comparable to that offered the ambulatory,
was discriminatory. The Court stated:
The attainment of the objects of the Code (i.e., the provision of choices to disabled
people comparable to those offered other members of the public) are not impos-
sible; they may be inconvenient, and in some cases expensive, but the result is the
one that was intended.24
The case remains noteworthy because it demonstrates that equality means more
than an inferior right of access (i.e., viewing the movie from a location less
desirable than that offered ambulatory persons), and it means more than a lim-
ited right of access (i.e., viewing the movie from a single location equal to a seat
offered to an ambulatory person, but without extending the choice of viewing
locations available to ambulatory persons). The Saskatchewan Court of Appeal
held that equality means a right to be included to the extent that this is possible.
This result is consistent with the Supreme Court decision in O’Malley, in that
the duty to accommodate requires the removal of the barrier which is creating
the adverse effect upon the member of a disadvantaged group.
The Huck case demonstrates the dilemma of difference. Accommodating a
person with a disability who is seeking integration into mainstream society is
very different from accommodating a person seeking to observe the distinct
practices of a minority religion. Clearly, a segregated viewing area for disabled
people was not Mr. Huck’s goal: he wanted to sit with his ambulatory compan-
ion. In contrast, Mrs. O’Malley did not demand that her employer restructure its
hours of operation. Her goal was not integration, but the maintenance of “dif-
ference” or distinctiveness. By refusing leave to appeal in the Huck case, the
Supreme Court deferred articulating that the duty to accommodate may involve
either integrating people who are different, or alternatively, allowing them to
23Saskatchewan Human Rights Commission and Huck v. Canadian Odeon Theatres, [1985] 3
W.W.R. 717, 18 D.L.R. (4th) 93 (Sask. C.A.) [hereinafter Huck cited to W.W.R.]. Leave to appeal
to the Supreme Court of Canada was refused.
241bid. at 744, Vancise J.A.
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CHRONIQUE DE JURISPRUDENCE
1457
remain separate. Just as importantly, the Court avoided having to articulate
when one as opposed to the other goal of equality will be applied, and who will
participate in deciding which goal is desirable in the circumstances.
1H1. The Substance of the Alberta Dairy Pool Decision
The facts of Alberta Dairy Pool are substantially similar to those in O’Mal-
ley. The complainant, Mr. Christie, was a member of the World Wide Church
of God. He requested permission to take unpaid leave on a particular Monday
in order to observe one of the church’s holy days. Mondays were particularly
busy at the milk processing plant where he worked. His request was refused. He
did not report for work and was terminated.
It was argued on Mr. Christie’s behalf that he had suffered discrimination
on the basis of his religion. A Board of Inquiry appointed pursuant to the Indi-
vidual’s Rights Protection Act’ ruled that the employer was under a duty to
accommodate him. An appeal to the Alberta Court of Queen’s Bench was
allowed 6 and affirmed by the Alberta Court of Appeal. 7 The Courts below
found that the B.F.O.Q. clause in the Act was comparable to the B.F.O.R. clause
which the Supreme Court of Canada had held precluded the duty to accommo-
date in Bhinder.
All members of the Supreme Court of Canada agreed that the Court’s deci-
sion in Bhinder should be reversed. In cases of adverse effect discrimination, all
seven were of the view that the applicability of a B.F.O.Q. clause does not pre-
clude the duty to accommodate. Unfortunately, this was the only thing about
which they were able to agree.
Wilson J., on behalf of the majority, held that the duty to accommodate dis-
placed the B.F.O.Q. defence, but only in cases of adverse effect discrimination.
In cases of direct discrimination, a respondent would not be under a duty to
accommodate, but would instead have to establish that the rule is a B.F.O.Q.
25R.S.A. 1980, c. 1-2. The relevant sections read as follows:
7(1) No employer or person acting on behalf of an employer shall
(a) refuse to employ or refuse to continue to employ any person,
or
(b) discriminate against any person with regard to employment or any term or
condition of employment,
because of the race, religious beliefs, colour, sex, physical characteristics, mar-
ital status, age, ancestry or place of origin of that person or of any other person.
… (3) Subsection (1) does not apply with respect to a refusal, limitation, spec-
ification or preference based on a bona fide occupational qualification.
26(1986), 45 A.R. (2d) 325.
27[1986] 5 W.W.R. 35.
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In contrast, Sopinka J., for the minority, held that the duty to accommodate
was an integral part of the B.F.O.Q. defence. Making an accommodation is
therefore but one of several ways open to an employer to ensure that a rule does
not have a discriminatory effect upon an individual employee. When assessing
whether accommodating an individual would impose undue hardship on an
employer, the trier of fact should take into account the hardship experienced by
the employer in accommodating other employees.
IV. Characterizing Discrimination
Ever since the O’Malley case was decided, Canadian courts have recog-
nized two distinct types of discrimination: direct and adverse effect. The major-
ity opinion in Alberta Dairy Pool emphasizes the importance of this distinction.
This is unfortunate, because it is quite easy to change the same discriminatory
standard from one which is directly discriminatory to adverse in effect, or vice
versa. Similarly, it may be difficult to characterize a standard which is clearly
discriminatory as belonging to one category as opposed to the other.
To illustrate, Sopinka J. stated:
We have a vague general rule that requires employees to work all working days.
There is no evidence of any consideration being given to the religious practices of
employees in the adoption of the general rule.2
F
Wilson J., however, went a step further:
the only way to characterize the respondent’s rule would appear to be “mandatory
attendance on Mondays except in case of illness or other emergencies, religious
obligation not being included as an emergency for this purpose.” Stated in the
obverse, the rule prohibited Monday absences due to religious obligation.29
A well informed employer might have gone the rest of the way and refused to
hire observant members of the complainant’s religion because they would be
unavailable for work on Mondays. In this manner, a clear case of adverse effect
discrimination would have been recharacterized as direct discrimination. How-
ever, a member of the World Wide Church of God who observed its holy days
would experience precisely the same consequences.
Virtually any rule or standard which causes adverse effect discrimination
can be recharacterized as direct discrimination. If a blind person applies for a
job as a stenographer, for example, an employer could assess all applicants
objectively with a typing test. Using a conventional computer, a blind person
could not pass the test. The test would therefore adversely affect a blind appli-
cant. Had the computer been fitted by the employer with a voice synthesizer, a
blind person could have competed on an equal basis. Alternatively, an employer
28Supra, note 3 at 529.
291bid. at 501-02.
1991]
CASE COMMENTS
1459
might refuse blind persons the opportunity of taking the test altogether, which
would constitute direct discrimination. Again, from the perspective of the blind
applicant, the result would be the same whether the barrier barring the way to
the job was characterized as direct or adverse effect discrimination.
Clearly, the outcome of the case should not hinge on the way discrimina-
tion is characterized by the court. According to the majority opinion in Alberta
Dairy Pool, however, this is precisely what would occur. An employer would
not be required to accommodate as long as the discrimination was direct. The
minority view eliminates the significance of characterizing discrimination by
holding that the duty to accommodate is an integral part of the guarantee of
equality contained in human rights legislation.
V. Direct and Adverse Effect Discrimination
Sopinka J. appears to be genuinely perplexed as to why Wilson J. is pre-
pared to do violence to the language of the statute in order to achieve differing
results in cases of direct as opposed to adverse effect discrimination.” Wilson
J.’s reasoning is derived primarily from the writing of William Pentney,3″ which
she paraphrases as follows:
the economic considerations that are factored into the determination of whether
accommodation imposes undue hardship will rarely be germane to a B.EO.Q.
defence. Similarly, the good faith of the employer is a central concern where the
rule singles out a particular group for adverse treatment. There is less reason to be
suspicious of the employer’s motives in the case of a rule which is neutral on its
face and generally applicable to all employees.32
With regard to the first point made by Wilson J., that undue hardship is not rel-
evant to cases of direct discrimination, reference need only be made to Saska-
toon Firefighters. In that case, the Court required that the employer avoid
stereotypes and assess the capacity of each individual to perform the job. The
limit on the obligation to individualize was not well defined. In consecutive sen-
tences in the judgment of Sopinka J., the employer’s obligation is variously
described as being whenever “possible,” then whenever “practical.” Relevant
factors include cost and public safety. While it is too early to say that “undue
hardship” and “business necessity” can be used interchangeably, there is no
principled reason why an employer should be under any different obligation to
stop direct, as opposed to adverse effect, discrimination.
Similarly, the second statement by Wilson J., that good faith is the central
concern in cases of direct but not adverse effect discrimination, is not persua-
30Ibid. at 526-28.
31W.S. Tarnopolsky & W.F Pentney, Discrimination and the Law, Sixth Cumulative Supplement
32Supra, note 3 at 516.
(Don Mills, Ont.: DeBoo, 1989) at 28.
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sive. The use of discriminatory stereotypes may be totally innocent and yet have
as severe an impact on individuals affected as if discrimination had occurred in
bad faith. For example, an employer may have no idea that a voice synthesizer
attached to a computer would enable a blind person to be a productive secretary.
A decision to refuse a typing test to a blind applicant could thus be made in per-
fect good faith. More culpable would be a decision to allow blind applicants to
take an unmodified test where the potential employer knew that a modification
to the computer would enable blind applicants to be competitive with sighted
ones.
In the Action Travail case,33 the Supreme Court recognized that employers
are becoming more sophisticated and subtle in the distinctions they make with
respect to employees. They are responding to efforts to make them equal oppor-
tunity employers with discriminatory practices which are difficult to detect but
just as harmful in their consequences as their more blatant predecessors.
The motivation of a respondent is relevant in a human rights case because
under the rule in Etobicoke Firefighters, “bad faith” precludes the employer
from relying upon “business necessity” when attempting to establish that a rule
is a B.EO.Q. Wilson J. does not explain why an employer who maliciously
engages in adverse effect discrimination should be able to rely upon the defence
of “undue hardship,” but she does acknowledge that such practices must be
“rationally connected” to the employer’s business activity.’
A third argument relied upon by the majority is that direct differs from
adverse effects discrimination in that the former harms more people. Wilson J.
points out that rules which directly discriminate impose a burden on all persons
who are subject to them.
This is distinguishable from a rule which is neutral on its face but has an adverse
effect on certain members of the group to whom it applies. In such a case the group
of people who are adversely affected by it is always smaller than the group to
which the rule applies. On the facts of many cases the “group” adversely affected
may comprise a minority of one, namely the complainant. 3
As she did with her first two arguments, Wilson J. is making a generalization,
and once again the generalization cannot be substantiated. In order to establish
that a rule based upon a stereotype is direct discrimination, it is not necessary
to prove that it is discriminatory towards all or even most persons who are sub-
33Supra, note 19.
34Supra, note 3 at 519-20, citing O’Malley, supra, note 10 at 551, which in turn is derived from
the test articulated in Griggs v. Duke Power, 401 U.S. 424 (1970) at 431-32. The remedy in the
Griggs case was to strike down the offending portion of an employment test, despite the fact that
it was superficially racially neutral, because it had an adverse effect and could not meet the “ratio-
nal connection” test.
35Alberta Dairy Pool, ibid. note 3 at 514-15.
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ject to the rule. According to the reasoning in Saskatoon Firefighters, a rule may
be justifiable in relation to all others subjected to it, but remains discriminatory
if it is not justifiable in the case of an individual complainant. 6
Conversely, a case of adverse effect discrimination may affect the lives of thou-
sands or tens of thousands of people. The Huck case did not hinge upon whether
Mr. Huck’s preferred location within the particular theatre was wheelchair
accessible. It hinged upon whether disabled theatre patrons had the same
choices open to them as were open to ambulatory ones. A remedy which granted
disabled people a comparable range of choices would benefit all future patrons
in wheelchairs. Barriers to equality, whether direct or adverse effect, are thus
equally susceptible of causing harm to both an individual or a huge group.
VI. B.F.O.Q. and the Duty to Accommodate
Up to this point, I have attempted to demonstrate that the reasons offered
by the majority in Alberta Dairy Pool to justify its “either … or” approach –
either B.F.O.Q. or duty to accommodate, based upon how the discrimination is
are not satisfactory. The minority rejected this approach and
characterized –
held that the duty to accommodate is an integral part of the B.FO.Q. defence.
It did not articulate any formula (Le., whether to use one test before or after the
other) for applying its “integrated” approach. Because it leaves so many ques-
tions unanswered, it is difficult to assess whether the different approaches artic-
ulated by the majority and minority will produce different results.
Taking the case of the blind secretary as an example: it is reasonable to
assume that where the allegation of discrimination was based on the failure to
provide a voice synthesizer attachment to the computer (ie., adverse effect dis-
crimination), the employer would be required to accommodate the secretary up
to the point of “undue hardship,” whichever of the two approaches is used. The
only exception might be where the employer’s conduct was maliciously moti-
vated. In such a case, the employer might not be able to assert an “undue hard-
ship” defence, because it could not meet the subjective element of the B.FO.Q.
defence. Otherwise, the result would be the same.
Comparisons are more difficult in circumstances where the employer has
a rule that a blind person may not apply for a secretarial position (i.e., direct dis-
crimination). I am assuming that the blind secretary cannot perform the duties
of the job without the voice synthesizer, but with it would be the most qualified
applicant. The question is whether the employer is under a duty to make the
accommodation.
When applying the majority’s “either … or” approach, the issue would be
whether there could be a complaint based on both direct discrimination (Le., the
36Supra, note 17.
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rule) and adverse effect discrimination (i.e., no voice synthesizer). Assuming
there could be, the only issue would be whether the accommodation would be
made before or after the rule was measured against the B.FO.Q. test. It makes
little sense to require an employer to make the accommodation, but to deny the
blind secretary the benefit of it.
Under the minority’s integrated approach, a complaint alleging adverse
effect discrimination would not have to be made. This simplifies the human
rights process and minimizes the risk of technical objections and the need to
assert facts to which the complainant might not have access. Once a finding of
direct discrimination was made, the employer’s rule could be struck down and
the employer could be found to have failed to accommodate. Again, the only
issue would be whether the rule is assessed in isolation from the obligation to
accommodate. At this point, it would appear most likely that the rule would be
evaluated after the accommodation had been made. I make this assumption
because the purpose underlying human rights legislation is to assure members
of disadvantaged groups, such as the blind secretary, equality of opportunity.
Thus, when determining whether discrimination has occurred, the con-
trasting approaches of the majority and the minority in Alberta Dairy Pool will
likely make little practical difference. There is a real difference between impos-
ing the duty to accommodate and deciding that a rule is not a B.FO.Q. The
former requires that positive steps be taken; the latter that steps being taken be
stopped. This is to do no more, however, than to restate the difference between
direct and adverse effect discrimination. Because the characterization of dis-
crimination as either direct or adverse effect is problematic,37 the apparent result
in Alberta Dairy Pool (i.e., an insignificant distinction being made between the
approaches of the majority and the minority) is both the logical and the desir-
able result.
While such a result may be desirable, it is not a foregone conclusion. The
rationale adopted by the majority to justify its approach suggests that future
cases may bring new significance to the distinction between direct and adverse
effect discrimination.
VII. Undue Hardship
The majority in Alberta Dairy Pool justifies making a distinction between
direct and adverse effect discrimination for the following reasons:
(i) it will not be necessary to impose financial limits on the obligation to
stop direct discrimination, but it will routinely be necessary in cases of adverse
effect discrimination.
37See supra, Part IV, “Characterizing Discrimination,” text accompanying notes 28-30.
1991]
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(ii) the employer’s motives are likely to be more reprehensible in cases of
direct discrimination; and
(iii) direct discrimination tends to harm groups of people while adverse
effect discrimination affects individuals. 3
1
If these reasons could be substantiated, they might serve as a justification for the
distinction, and for placing a heavier duty to stop discriminating on employers
in cases of direct than adverse effect discrimination. I have attempted to dem-
onstrate that these reasons cannot be substantiated. Even if they could, however,
I would argue that there are a number of overriding considerations mitigating
against imposing a heavier duty in cases of direct discrimination.
First, the majority took judicial notice of target groups which tended to
require accommodation, by quoting from the Special Report to Parliament on
the Effects of the Bhinder Decision on the Canadian Human Rights Commis-
sion. 9 If the result in Alberta Dairy Pool will be to place a heavier onus on
employers in cases of direct discrimination, the result will be to judicially
impose an approach where levels of court scrutiny will vary according to the
way in which the discrimination is characterized. Discrimination against groups
which typically experience adverse effect discrimination, such as persons with
disabilities and members of religious minorities, would be treated differently
under human rights legislation than would groups which tend to experience
direct discrimination, such as members of visible minorities. While this type of
“levels of scrutiny” approach has emerged in constitutional jurisprudence in the
United States, one will search in vain for legislative or judicial precedent in
Canada to support it. The Joint Committee of the Senate and House of Com-
mons on the Constitution of Canada expressly rejected such an approach when
considering the equality clause incorporated into the Charter of Rights and
Freedoms in s. 15.40
Closely linked to the “levels of scrutiny” interpretation favoured by the
United States Supreme Court has been a judicial diminution of the duty to
accommodate. When assessing the “undue hardship” limit on the duty under
American human rights legislation, the United States Supreme Court requires
only those accommodations which may be achieved at no more than de minimis
38Supra, note 3 at 512-16.
39Ibid. at 512, quoting the Canadian Human Rights Commission Report to Parliament, supra,
note 4 at 4:
Currently the Commission is investigating 528 complaints alleging discrimination in
employment. Potentially, 33% of the complaints which concern religion or disability
and 5% of the complaints dealing with sex discrimination might be affected by the
Bhzinder decision.
4Minutes of Proceedings and Evidence Issue No. 10 (21 November 1980) at 58-60, see Baker,
supra, note 1 at 554, n. 270.
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cost to the employer.4′ Understandably, this has given the duty to accommodate
some bad press. At one point, the duty came to signify an obligation to do noth-
ing more than make ad hoc, highly individualized changes. Any equality seek-
ing group worth its salt would feel aggrieved to learn that systemic remedies
would be unavailable, displaced by an obligation to make a symbolic gesture
towards equality.42 This restrictive jurisprudence is gradually being overturned
by more recent human rights legislation in the United States, such as the Amer-
icans with Disabilities Act,43 which clearly mandates a fundamental restructur-
ing of American society. The duty to accommodate has taken on an entirely new
meaning in the United States as a consequence of these developments.
While Canadian case law remains sparse, it appears that we have taken a
different approach than the Americans. The clearest Canadian statement with
respect to the extent of the duty to accommodate is to be found in the Guidelines
for Assessing Accommodation Requirements for Persons with Disabilities,
41Transivorld Airlines Inc. v. Hardison, 432 U.S. 63 (1977).
42see e.g. C.A. MacKinnon, “An Overview of Equality Theories” (Address to the National
Meeting of Equality Seeking Groups, Ottawa, January 1989) [unpublished].
43Pub. L. No. 101-336, 104 Stat. 327 (1990), s. 101: The obligation to accommodate in employ-
ment is defined as:
(9) Reasonable Accommodation. The term “reasonable accommodation” may
include:
(a) making existing facilities used by employees readily accessible to and usable
by individuals with disabilities; and
(b) job restructuring, part-time or modified work schedules, reassignment to a
vacant position, acquisition or modification of equipment or devices, appropri-
ate adjustment or modifications of examinations, training materials or policies,
the provision of qualified readers or interpreters, and other similar accommoda-
tions for individuals with disabilities.
(10) Undue Hardship.
(a) In General. The term “undue hardship” means an action requiring significant
difficulty or expense, when considered in light of the factors set forth in subpar-
agraph (b).
(b) Factors to be Considered. In determining whether an accommodation would
impose an undue hardship on a covered entity, factors to be considered include:
(i) the nature and cost of the accommodation needed under this Act;
(ii) the overall financial resources of the facility or facilities involved in the pro-
vision of the reasonable accommodation; the number of persons employed at
such facility; the effect on expenses and resources, or the impact otherwise of
such accommodation upon the operation of the facility;
(iii) the overall financial resources of the covered entity; the overall size of the
business of a covered entity with respect to the number of its employees; the
number, type, and location of its facilities; and
(iv) the type of operation or operations of the covered entity, including the com-
position, structure, and functions of the workforce of such entity; the geographic
separateness, administrative, or fiscal relationship of the facility or facilities in
question to the covered entity.
1991]
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1465
issued by the Ontario Human Rights Commission in 1989.’ The Guidelines
make it clear that accommodations for persons with disabilities are to “maxi-
mize their integration and … promote their full participation in society.”45 In
other words, the accommodation must involve removing the barrier which
causes the adverse effect; an ad hoc or symbolic gesture will not be sufficient.
Let there be no question of a de minimis interpretation of undue hardship here:
Undue hardship will be shown to exist if the financial costs that are demonstrably
attributable to the accommodation of the needs of the individual with a disability,
and/or the group of which the person with a disability is a member, would alter
the essential nature or would substantially affect the viability of the enterprise
responsible for accommodation. 46
The majority in Alberta Dairy Pool lists a number of factors which it states are
to be balanced “against the right of the employee to be free from discrimina-
tion. Wilson J. suggests that a “balancing of factors” will occur in cases of
adverse effect discrimination, which apparently means this will not take place
if the discrimination is direct. In contrast, the minority does discuss “balancing
interests” when assessing the extent of the duty inherent in the B.F.O.Q., instead
making clear that “a[n accommodation] policy may be a reasonable alternative
to a practice that entails an ad hoc accommodation of individual employees.” 8
Whatever else may be said for the minority decision, it is clear that the extent
of the duty to accommodate is the same in cases of direct and adverse effect
discrimination.
VIII. Resolving the Dilemma of Difference: A Question of Remedies
Finding a solution to the dilemma of difference requires more than a sim-
ple finding by a court or tribunal that discrimination has taken place. Often, the
greater challenge is fashioning a suitable remedy. Suitability is not an issue of
whether the discrimination was direct or adverse effect, but rather, whether the
remedy should be individualized or systemic. As I have demonstrated in earlier
discussion of Saskatoon Firefighters” and Huck,”0 discrimination may affect a
specific individual in direct discrimination cases and be widespread in cases of
adverse effect discrimination. In either case, one would normally expect any
remedy granted to end the discrimination, unless the full remedy would cause
undue hardship, in which case a less complete remedy would be substituted.
44Ontario Human Rights Commission, Guidelines for Assessing Accommodations Requirements
for Persons with Disabilities (Toronto: Ministry of Citizenship, 1989) [hereinafter Guidelines].
45Ibid. at 5.
461bid. at 8.
47Supra, note 3 at 520-21.
4SIbid. at 529.
49Supra, note 17 and accompanying text.
50Supra, note 23 and accompanying text.
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Presumably, priority would be attached to remedying the circumstances affect-
ing the complainant (or complainants). The typical remedy in cases of direct
discrimination is to strike down the employer’s rule entirely, which is a systemic
remedy. Courts and tribunals assume that the employer will choose to substitute
a new non-discriminatory rule for the one found to be discriminatory. The avail-
ability of a non-discriminatory alternative may have been fully explored as part
of establishing that the original rule was not a B.F.O.Q., nevertheless, the rem-
edy is limited to striking down the original rule.
In cases of adverse effect discrimination, in contrast, the typical remedy
involves directing that the employer take some positive action in order to cease
discriminating. The action ordered is often specific to the complainant, but may
also involve a systemic remedy which benefits a broader class of persons.
The tendency to grant systemic remedies in cases of direct discrimination
and individualized ones in cases of adverse effect discrimination has reinforced
the mistaken notion that the obligation to avoid discriminating is heavier in the
former as compared to the latter. I will conclude this comment by suggesting an
alternative approach to remedying cases of discrimination, an approach which
does not confuse the complex process of selecting remedies with the extent of
the obligation to avoid discriminating.
Except when an employer is acting affirmatively, racial differences
between employees should be utterly irrelevant to any decision the employer
must make. In cases of racial discrimination, an individualized remedy would
thus not be appropriate. A racially based practice or rule which is not affirma-
tive action will deny opportunities to others in similar circumstances and should
be struck down entirely. If the discriminatory aspects of a rule are confined to
one element, then it is only that element which needs to be struck down.
Whether the discrimination is direct or adverse effect does not change what
must be the irrelevancy of race to decisions made by the employer. In such
cases, whether the discrimination is direct or adverse effect, the irrelevance of
the difference makes a systemic remedy essential to the achievement of the
broad public policy objective underlying human rights legislation.
In a second group are cases where the enumerated grounds of discrimina-
tion prohibited by statute may serve as surrogates for other relevant criteria.
Thus, for example, a prohibited ground such as age (or a non-prohibited ground
such as years on the job) may serve as a surrogate for another factor which is
directly relevant to the actual performance of a job: here for example, the risk
of heart failure. Since it can be statistically proven that older people are at
greater risk of heart failure, employers may substitute the stereotype for the
assessment of the directly relevant factors themselves. Where a surrogate factor
is used, it is important to ensure that individuals do not suffer unnecessary dis-
crimination. Conversely, where the direct factor (i.e., risk of heart failure) is
1991]
CASE COMMENTS
1467
misapplied in circumstances in which it is irrelevant, the result may be adverse
effect discrimination against older persons. In such cases, the goal in fashioning
a remedy is to establish non-discriminatory criteria, by striking down rules
where surrogacy is not necessary and rules based on direct factors which are
unnecessarily broad.
Sometimes a discriminatory rule based on a surrogate will be upheld, as it
was in Saskatoon Firefighters. In such a case, however, it may still be possible
to accommodate those who have been or may be hurt by the rule. Thus, it may
have been possible in that case to modify the jobs of firefighters over the age
of 60 years, by substituting safer tasks for those which involved unacceptable
risks, without causing the employer undue hardship.
In cases where the discriminatory categories used are surrogates, remedies
requiring the replacement of the surrogate with direct criteria should be
explored first. Next, one should consider whether the rule was imposed in good
faith, and then whether it is overly broad. Finally, the imposition of the duty to
accommodate should be considered, to determine first whether the employee
can comply with the rule, and ultimately whether an accommodation can be
made to restructure the work so that the rule itself becomes irrelevant.
In cases where the protected category itself appears to be directly relevant
to a determination (e.g., a disability case involving visual acuity standards), the
same progression should be followed, except for the initial stage of substituting
the actual for the surrogate standard.
Unfortunately, finding the appropriate remedy is not always this mechan-
ical. Resolving the dilemma of difference often requires that additional elements
be added before a formula can be said to exist for remedying the discrimination.
Most vexing is the problem of divergent opinions within the disadvantaged
group. Disagreement may exist among members either about the ultimate goal
of equality or the means of achieving it. Martha Minow cites the example of two
educators who differ on the value of bilingual education for children who have
been raised in a Spanish speaking environment:
Both … understood schooling as a process of transferring loyalties and trans-
forming identities. One argues that to do so undermines the self-esteem of the “dif-
ferent” child. The other maintains that to do otherwise risks perpetuating exclusion
on the basis of that difference. Acknowledgement of difference can create barriers
to important parts of the school experience and delay or derail successful entry
into the society that continues to make difference matter. Failure to acknowledge
difference can leave the child scarred by silent non recognition and implicit rejec-
tion.51
51M. Minow, Making All the Difference (Ithaca, N.Y.: Cornell University Press, 1990) at 28-29.
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Both educators were raised in Spanish speaking homes, educated in a uni-
lingual English system and agree that the ultimate objective of the educational
system is to enable the child to function effectively in an English speaking envi-
ronment. Both sides can cite evidence to support their position. Two children
sharing the same “difference” could respond very differently to a bilingual, as
opposed to a unilingual English education system. Difference poses a dilemma
in this case because there is no right or wrong answer for such children. The
issue is whether any choices are possible, and who should have the responsibil-
ity of making them.
Resolving such disputes involves considering the rights of the individual,
the collective rights of the disadvantaged group of which the person is a mem-
ber and the responsibility of the particular public authority to make choices
between a range of alternatives. Thus, even where the school can be proven to
have discriminated against a linguistic minority, the choice of remedy may
remain a dilemma (i.e., equal unilingual English or equal bilingual Spanish-
English). Nonetheless, this is a dilemma which a court may ultimately be
required to resolve, as was the United States Supreme Court in Brown v. Board
of Education of Topeka. 2 In that case, the Court selected a sweeping, systemic
remedy, which has since been credited with leading the way towards the inte-
gration of black and white children in public schools. In circumstances where
the evidence is not as determinative, or where no consensus regarding goals
exists within the group which has been discriminated against, a court should
choose a more individualistic remedy and consider providing the victims with
as much choice as possible in its fashioning.
Where a general consensus does exist within a disadvantaged group
favouring the ultimate goal of either inclusion (e.g., within the community of
disabled persons) or separateness (e.g., an aboriginal right to “self-
government”), an ad hoc solution will rarely suffice. Even where a person’s dis-
ability is virtually unique, the preferred remedy would generally be to require
that an employer review its practices to minimize barriers to all disabled per-
sons, and establish policies which anticipate the fact that in the future, both
incumbents and applicants may require accommodation. Similarly, cases of
direct discrimination against aboriginal persons will often require more than
simply ordering that direct discrimination cease. The court or tribunal should
also consider ordering that positive steps be taken to create an environment
where a critical mass exists within which equality can flourish.53
52347 U.S. 483 (1954).
5 3An early and rare example of resolving the dilemma of difference is Canard v. A.G. Canada,
[1972] 5 W.W.R. 678, 30 D.L.R. (3d) 9 at 22 (Man. C.A.), Dickson J.A., subsequently overturned
in A.G. Canada v. Canard (1975), [1976] 1 S.C.R. 170, [1975] 3 W.W.R. 1.
1991]
CHRONIQUE DE JURISPRUDENCE
1469
Human rights legislation often expressly gives tribunals the authority to
fashion remedies which extend beyond the specific act of discrimination which
is in dispute between the parties. For example, the Canadian Human Rights Act,
following a finding of discrimination, gives a Tribunal discretion to order:
(a) that such person cease such discriminatory practice and, in order to prevent
the same or a similar practice from occurring in the future, take measures,
including
(i) adoption of a special program, plan or arrangement referred to in subsection
15(1), or
(ii) the making of an application for approval and the implementing of a plan
pursuant to section 15.1,
in consultation with the Commission on the general purposes of those measures; 54
Thus, a Tribunal may order that a discriminatory practice cease not only in rela-
tion to the particular complainant, but in relation to everyone affected by the
policy. This is in fact the typical remedy ordered by human rights tribunals
when a rule is found not to be a B.FO.Q. What is noteworthy about the legis-
lation is that a tribunal has the authority to order an extensive positive remedy,
i.e., a special project which will accommodate not only the complainant, but any
others in comparable circumstances.
This power to grant broad systemic remedies is the flip side of taking into
consideration the existence of systemic policies when assessing undue hardship
in the case of an individual complainant. Both Wilson J. and Sopinka J. noted
in Alberta Dairy Pool the absence of any employer policy to accommodate the
practice of a minority religion. Sopinka J. pointed out that the existence of such
a policy might serve to justify an otherwise discriminatory failure to
accommodate:
An employer with a large number of employees of many different religions
may be able to discharge the duty inherent in the BFOQ by adopting a policy with
respect to the accommodation of the religious beliefs of its employees. Such a pol-
icy may be a reasonable alternative to a practice that entails an ad hoc accommo-
dation of individual employees. This is one of the advantages of dealing with the
duty to accommodate in the context of the B.F.O.Q. defence rather than at large.
An employer who has not adopted a policy with respect to accommodation and
cannot otherwise satisfy the trier of fact that individual accommodation would
result in undue hardship will be required to justify his conduct with respect to the
individual complainant.55
To date, few systemic remedies have been ordered by the courts beyond
simply striking down rules which are directly discriminatory. The notable
exception has been the Action Travail case.56 Until more employers develop
5Canadian Human Rights Act, s. 53(2).
55Supra, note 3 at 529.
56Supra, note 19 and accompanying text.
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McGILL LAW JOURNAL
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employment equity plans, which will in all likelihood only occur following the
enactment of mandatory employment equity legislation, the interrelationship
between such plans and human rights legislation will only occur in exceptional
circumstances.
Conclusion
This is as far as the existing equality framework contained in human rights
legislation and Supreme Court of Canada jurisprudence would appear to extend.
The Alberta Dairy Pool case makes it clear that a distinctively Canadian
approach to equality is continuing to emerge. What is fascinating is how the
Court has assumed the leadership role in building this framework. Legislatures
have been slow to respond to judicial setbacks in discrimination cases such as
Bhinder. Only in Ontario can it be said that the legislative branch remains in the
forefront of applying equality principles. 7
The Supreme Court has been eclectic, creative and progressive in its
approach. It will require all of these attributes and more as it seeks to deal with
new issues on the horizon, such as measuring equality between the non-
aboriginal majority and aboriginal people who demand the right to remain sep-
arate and to engage in self-government, 8 or establishing benchmarks for equal-
ity as women argue for a relational approach which seeks to end male
domination of social institutions. 9
The majority opinion in Alberta Dairy Pool attempted to emphasize the
real or perceived differences which flow from holding an employer to the
B.F.O.Q. standard, as opposed to the accommodation standard. It is unfortunate
that the framework selected was not consistent with the goals established by the
Court in earlier jurisprudence. As a result, the decision may create hardship at
least in the short-term, as accommodations in cases of direct discrimination, and
the striking down of discriminatory rules in cases of adverse effect discrimina-
tion, may be impeded. As I have demonstrated, this type of result need not fol-
low, but the possibility clearly exists. In any event, unnecessary attention will
be paid to the characterization of discrimination as direct or adverse effect. Per-
haps most harmful is the suggestion by the majority that the duty to accommo-
date requires only that ad hoc, individualistic action be taken. This is inconsist-
ent with the goal, so clearly identified in the O’Malley, Bhinder and Huck
57For a description of how Ontario has consistently reversed judicial setbacks, see Baker, supra,
note 1.
58Statement of Meeting of Ministers with the Assembly of First Nations (20-21 March 1986,
Ottawa) per Chief Joe Mathias (Squamish Nation) and Chief Gary Potts (Teme-Augama
Anishnabai).
59C. Gilligan, In a Different Voice (Cambridge: Harvard University Press, 1982); C.A. MacKin-
non, Feminism Unmodified: Discourses on Life and Law (Cambridge: Harvard University Press,
1987) and Toward a Feminist Theory of the State (Cambridge: Harvard University Press, 1989).
1991]
CASE COMMENTS
1471
decisions, of ending generalized employer practices which adversely affect dis-
advantaged groups.
The minority opinion in Alberta Dairy Pool is consistent both with the lan-
guage of the statute being applied and the framework which has been evolving
in successive decisions of the Supreme Court.’ What it lacks is the adventurous
quality of the majority opinion, which, for all its flaws, seeks to unravel the
remaining dilemmas of difference.
Canadians have generally been well served by a Supreme Court which has
been willing to listen carefully, and think deeply, while fashioning norms of
equality which will change the lives of disadvantaged persons for the better. The
Alberta Dairy Pool case confirms that while that process is far from complete,
it is still very much alive.
6An example of the importance of statutory language is the Ontario Human Rights Code, 1981,
supra, note 11, which expressly requires that accommodation be an option in cases of direct dis-
crimination (s. 16) and pointedly omits reference to business inconvenience as a consideration
when assessing “undue hardship” (ss 10 and 16). Business inconvenience or “undue interference
in the operation of the employer’s business” was held in O’Malley, supra, note 10 at 555, to con-
stitute undue hardship. By removing the reference to “business inconvenience” on Third Reading,
the Ontario Legislature clearly intended to impose a heavier duty to accommodate. Ontario, Han-
sard, 2nd Sess., 33d Leg. (9 December 1986) at 4060-64.
