Canadian Employment Law Today

September 22, 2021

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Canadian HR Reporter, 2021 they turn 60 years old. This was in accordance with the Ontario Fire Protection and Preven- tion Act (FPPA), which requires full-time fire- fighters to retire at age 60. Denis Lemire was a volunteer firefighter who joined Tecumseh's fire rescue service in 1979. He was recognized as a good firefighter who did an excellent job over the course of his career. However, he turned 60 years old in 2016 and as such was required to retire at the end of the year after 37 years of service. In April 2016, Lemire wrote a letter to the town asking for it to reconsider the mandatory retirement provision. He pointed out that in the first three months of the year, he had at - tended 21 out of 28 daytime fire calls and he was committed to the service, adding that he had no common risk factors for heart disease. He included a note from his family physician that stated he was "a very healthy individual" that was "fit to be a firefighter." However, the town's CEO told him that the mandatory re - tirement provisions would not be changed. Lemire wrote a second letter on Oct. 24 — with his mandatory retirement date looming just over two months away — asking once again for an exemption. The CEO's response referred to various tribunal and court deci - sions upholding mandatory retirement for firefighters and finding that a firefighter would have to support an exemption with medical evidence that demonstrated "extremely low or negligible risk of cardiac events and set out a testing regime to regularly update that evi - dence." Lemire visited a cardiologist for cardiovascu- lar testing on Nov. 2. The report found that his 10-year risk for coronary artery disease was be- low average for men his age and his annual risk was very low. The report concluded that Lemire's duties as a firefighter would not put him at an increased risk of a cardiovascular event. The town again refused to consider an ex - emption, saying that the cardiologist's report didn't meet "the requisite medical standard established by the jurisprudence." Lemire asked the town to define what the medical standard was, and the town referred back to the case law it had cited in the CEO's original response. Daniel Lemay was another volunteer fire - fighter for Tecumseh who joined in 1987. Like Lemire, he turned 60 years old in 2016 and was required to retire. He asked the chief for an ex- emption based on his exemplary record and willingness to continue working, but he was told that his request couldn't be considered because he hadn't submitted any medical evi - dence. The city later sent him a letter similar to what it had sent Lemire, outlining the same case law and pointing to the requirement to provide medical evidence demonstrating low or negligible risk of cardiac events and an on- going testing regime. Lemay sent the city a letter from his fam- ily physician indicating that Lemay had un- derlying hypertension, high cholesterol, and diabetes, but they were all well-controlled. A cardiovascular screening indicated that Lemay had a very low chance of developing chronic heart failure or a heart attack over the next two years, so "he should be fit for any type of em - ployment, including that of a firefighter." The city replied that the physician's letter didn't meet "the requisite medical standard established by the jurisprudence, identified in our earlier letter to you, in order for the corpo - ration to consider accommodation for a sup- pression firefighter over the age of 60 years." Mandatory retirement was age discrimination: Firefighters Both Lemire and Lemay filed grievances over the collective agreement's mandatory retire- ment provision, arguing that it constituted age discrimination and didn't allow for reason- able accommodation and the FFPA only ap- plied to full-time firefighters, not volunteers. The two firefighters each met individu- ally with city officials and asked what was needed, and they were told there was nothing that could change the situation. They both dropped their grievances and filed human rights complaints on the same grounds. The tribunal noted that the Ontario Human Rights Code allows discrimination in employ - ment if the grounds for discrimination "is a reasonable and bona fide qualification be- cause of the nature of the employment" and the individual "cannot be accommodated without undue hardship on the person re- sponsible for accommodating those circum- stances." The case law that the city provided to Lemire and Lemay in its responses referred to that ex- ception, particularly because it had been es- tablished that "age is a significant contributor to the likelihood of on-the-job cardiac events in suppression firefighters, that such events constitute a significant health and safety issue, and that it would constitute undue hardship for a municipality to adopt another system, such as universal individual testing." With that established, any firefighter want - ing to circumvent the mandatory retirement provision would have to demonstrate an "extremely low or negligible risk of a cardiac event" with a testing method that can deter- mine an individual's risk of a cardiac event that was better than just their age, the tribunal said. No better indicator of cardiac risk than age The tribunal added that the jurisprudence left things open for accommodation if a test that was considered a better indicator for the risk of a cardiac event than age was developed in the future, but such a test had yet to be developed. Although the two firefighters underwent a se - ries of tests, including a treadmill test, these had previously been found to not provide a better indicator of risk than age alone. "[Lemire and Lemay] have both put for- ward medical evidence that they are in good health," said the tribunal. "They did not, how- ever, put forward any evidence of a new indi- vidual testing method that could demonstrate that they have an extremely low or negligible risk of a cardiac event." The tribunal also found that although the FPPA's reference to full-time firefighters for mandatory retirement didn't directly apply to volunteer firefighters, there was no indica - tion that the legislation intended to displace existing case law on mandatory retirement for volunteer firefighters — particularly since the evidence was that the responsibilities of vol- untary firefighters in Tecumseh were the same as full-time firefighters in other municipali- ties. The tribunal upheld mandatory retirement at age 60 for Tecumseh volunteer firefighters and dismissed the two complaints. For more information, see: • Lemay v. Tecumseh (Town), 2021 HRTO 536 (Ont. Human Rights Trib.). 6 | | September 22, 2021 September 22, 2021 « from ONTARIO FIREFIGHTERS on page 1 Doctors' letters didn't meet medical standard to consider accommodation Cases and Trends Cases and Trends Both firefighters provided letters from their doctor stating they were in good health. CREDIT: TWOELLIS iSTOCK

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