T-1957-89
Canadian National Railway Company (Applicant)
v.
Stephen Cole, Paula Tippett and Edward H. Fox
as members of the Human Rights Tribunal con
stituted under the Canadian Human Rights Act
and Canadian Human Rights Commission and
Michael Doyle (Respondents)
INDEXED AS: CANADIAN NATIONAL RAILWAY CO. Y. CANADA
(HUMAN RIGHTS TRIBUNAL) (T.D.)
Trial Division, Muldoon J.—Ottawa, November
20 and 23, 1989.
Human rights — Job restrictions imposed on insulin-
dependent diabetic railroad brakemanlyardman bona fide
occupational requirement — Commission exceeded jurisdic
tion in appointing Tribunal to inquire into settled issue —
Inquiry prohibited.
Judicial review — Prerogative writs — Prohibition —
Human rights — Bona fide occupational requirement — Job
restrictions imposed on insulin-dependent diabetic railroad
brakeman/yardman — Human Rights Tribunal prohibited
from inquiring into complaint where issue settled by case law
— Commission abusing powers and exceeding jurisdiction.
The respondent, Doyle, had been employed by the applicant,
CNR, as a brakeman/yardman since May, 1979. In December,
1983, he was diagnosed as an insulin-dependent diabetic. In
March, 1984, after an examination by CNR's medical officer,
Doyle was restricted from performing certain of the tasks of his
job, such as flagging and mounting and dismounting moving
vehicles. In May, 1984, the employee filed a complaint with the
Canadian Human Rights Commission. For various reasons, a
Tribunal to inquire into the complaint was not appointed until
April, 1989. In the meantime, new techniques for monitoring
insulin-dependent diabetics were found and in September,
1988, Doyle was restored to his former position. He is currently
in training to become a locomotive driver. Counsel were, how
ever, agreed that December 3, 1983 to May 17, 1984 was the
material time and that the appointment of the Tribunal will be
legally justified or not upon the parties' knowledge of the
control of diabetes and the events and case law arising out of
the material time.
This was an application to prohibit the Tribunal from inquir
ing into the complaint and for an order that the Commission
acted beyond its authority in appointing the Tribunal.
Held, the Tribunal should be prohibited from inquiring into
the complaint.
Prior to the appointment of the Tribunal herein, the Federal
Court of Appeal in Canadian Pacific Ltd. v. Canada (Canadian
Human Rights Commission) and a Review Tribunal in Gaetz v.
Canadian Armed Forces, both applying the parameters for
determining what constitutes a "bona fide occupational
requirement" set by the Supreme Court of Canada in Ontario
Human Rights Commission et al. v. Borough of Etobicoke and
Bhinder et al. v. Canadian National Railway Co. et al., found
that freedom from insulin-dependent diabetes and its risks was
clearly a bona fide occupational requirement for jobs requiring
the employee to be physically active and/or mentally alert at
critical but unscheduled times.
The Court should be slow to pre-empt the Commission and a
Tribunal, but where the Tribunal's decision, to be correct in
law and evidence, is a foregone conclusion, the Commission, in
appointing the Tribunal, should be considered to have acted
beyond its jurisdictional authority and the inquiry should be
prohibited as useless, expensive, disruptive, inconvenient and
abusive. The Commission trivializes the cause of human rights
when it persists in creating inquiries into matters already
decided.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss.
15(a), 49(1).
CASES JUDICIALLY CONSIDERED
APPLIED:
Canadian Pacific Ltd. v. Canada (Canadian Human
Rights Commission), [1988] 1 F.C. 209; (1987), 40
D.L.R. (4th) 586 (C.A.); Gaetz v. Canadian Armed
Forces (1988), 89 CLLC 17,014 (C.H.R.T.); Ontario
Human Rights Commission et al. v. Borough of Etobi-
coke, [1982] 1 S.C.R. 202; (1982), 132 D.L.R. (3d) 14;
82 CLLC 17,005; 40 N.R. 159; Bhinder et al. v. Canadi-
an National Railway Co. et al., [1985] 2 S.C.R. 561;
(1985), 23 D.L.R. (4th) 481; 17 Admin. L.R. 111; 9
C.C.E.L. 135; 86 CLLC 17,003; 63 N.R. 185.
REFERRED TO:
Attorney General of Canada v. Cumming, [1980] 2 F.C.
122; (1979), 103 D.L.R. (3d) 151; 79 DTC 5303 (T.D.);
Canadian Pacific Air Lines, Ltd. v. Williams, [1982] 1
F.C. 214 (C.A.).
COUNSEL:
John M. Barker, Q.C. and Myer Rabin for
applicant.
René Duval and Nancy Holmes for respon
dents.
SOLICITORS:
Cox, Downie & Goodfellow, Halifax, for
applicant.
Canadian Human Rights Commission,
Ottawa, for respondents.
The following are the reasons for order ren
dered in English by
MULDOON J.: In this case Canadian National
Railway Company (hereinafter: the applicant)
filed a notice of motion on September 22, 1989,
according to which it seeks the following orders:
a) an order by way of prohibition to prevent the respondents
Stephen Cole, Paula Tippett and Edward H. Fox, acting in
their capacity as a Human Rights Tribunal, under the Canadi-
an Human Rights Act, from inquiring into a complaint made to
the Canadian Human Rights Commission by the respondent
Michael Doyle;
b) an order by way of prohibition preventing these respondents
from entering into the said inquiry until final determination of
the within matter by this Court;
c) an order that the respondent Commission acted beyond its
authority in appointing the Tribunal; and
d) such other relief as this Court may deem just.
The issues are joined by and on behalf of the
Tribunal and the Canadian Human Rights Com
mission (hereinafter: the respondents) but not by
the respondent Michael Doyle (hereinafter: the
employee or the complainant). His interests, then,
have been, and are, represented only indirectly by
counsel for the respondents. The case came on for
hearing in Ottawa on November 20, 1989. The
principal body of documented facts before the
Court and underpinning these proceedings, is
defined and expressed in the affidavit and exhibits
thereto of Marvin Blackwell, vice-president, Atlan-
tic Region, of the applicant, in Moncton, New
Brunswick.
The employee Doyle had been employed by the
applicant in the role of brakeman/yardman since
May 29, 1979, prior to December, 1983, when he
was diagnosed to be an insulin-dependent diabetic.
On March 29, 1984, following an examination by
the applicant's medical officer, the employee was
restricted by the applicant from performing cer
tain of the tasks of his job, such as flagging and
mounting and dismounting moving vehicles. These
restrictions ought to be viewed in comparison with
the full range of the duties, responsibilities and
working conditions of those who hold the position
of brakeman/yardman, which are set out in exhibit
"N" to Blackwell's affidavit, as follow:
What does a Brakeman/Yardman do?
The Brakeman (male or female) is a member of a train crew
involved in train movements to various locations and is required
to travel to distant terminals with the train. The Yardman
(male or female) is a member of a yard crew involved in
switching cars at specific locations, making up trains and
servicing industries.
Duties and Responsibilities
The Brakeman/Yardman:
— handles the coupling and switching of cars;
— gives and interprets signals specific to the train or yard
movements;
— inspects the condition of equipment and passing trains;
checks general yard conditions; takes appropriate safety
measures as required.
— operates equipment such as radios, switches and uncoupling
devices to facilitate train movement, train operations and car
switching;
— displays flags and signals to protect the train in an emergen
cy situation, as stipulated in the operating rules. This may
require walking a prescribed distance ahead of or behind the
train and remaining there for an extended period of time;
— works with others at train derailments;
— assists passengers on and off train, and ensures that baggage
is safely stored;
— patrols passenger cars while in motion, to ensure that order is
maintained;
— gives out information regarding train timetable, and
announces stations.
Working Conditions
The Brakeman/Yardman:
— works in accordance with established CN safety practices
and regulations.; must wear prescribed clothing, footwear
and protective devices;
— is required to be groomed and dressed as prescribed when
working on passenger trains;
— works under hazardous conditions;
— works outdoors in all weather conditions;
— works occasionally in isolation;
— works at different locations, depending on the work
assignment;
— is often absent from home terminal for variable periods of
time, when assigned to a train;
— works shifts (day, evening or night) on weekdays, weekends
and statutory holidays for many years;
— works irregular assignments and hours for several years; is
subject to working long hours;
— remains available for duty on an on-call basis 24 hours a day,
throughout the year;
— undergoes training and periodic assessment;
— is subject to a probation period;
— is subject to layoff.
Who is Eligible?
Any individual 18 years of age of over may be considered for
the positions of Brakeman/Yardman.
Once you have made the decision to apply for the positions of
Brakeman/Yardman, you will be required to:
— take and pass both a medical examination and a physical
performance test.
On March 27, 1984, the same day as that on
which the employee was subjected to the medical
recommendation imposing the work restrictions,
his family physician composed and signed a brief
note about the employee, exhibit "B", stating:
Under my care for insulin dependant diabetes—no complica-
tion—should be employed as fit for any duty.
The following day, the employee, his local union
chairman and an assistant superintendent of the
applicant railway company had a meeting to deter
mine work opportunities for the employee. As
earlier above noted, it was on the following day
thereafter, March 29, 1984, that the employee was
advised by letter of the specifics of the working
restrictions.
On May 7, 1984, the employee signed, and on
May 17, 1984, the Commission received the
employee's complaint form, exhibit "C", in which
the employee complained:
that my employer is differentiating adversely against me by
depriving me of my employment opportunities on the ground of
my diabetes, contrary to Sections 7 and 10 of the Canadian
Human Rights Act.
Now, the material times for this litigation, as
counsel on both sides agreed is the period between
about December 3, 1983 when the employee's
diagnosis was made, to May 17, 1984, when his
complaint was received by the Commission. It
thereafter took what seems to be a prodigiously
long time, almost five years, for the Commission to
get around to appointing the three named respon
dents as a Tribunal under the Act, that is, until
April 12, 1989, as revealed by exhibit "K". Much
has happened in that five-year span. It appears
that there may be new techniques for monitoring
the condition of insulin-dependent diabetics and, it
also appears that in September, 1988, the
employee was restored to his former position and is
now in training to become a locomotive driver.
These developments redound to the employee's
benefit, but, since the material time is the span
between December 3, 1983 and May 17, 1984, it is
apparent, as counsel on both sides agreed, that the
appointment of the Tribunal will be legally justi
fied or not upon the parties' knowledge of the
control of diabetes and the events and jurispru
dence arising out of the material times. That is not
to say that litigation such as this, and the appoint
ments of Tribunals which sometimes generate such
litigation, are to become fossilized relics in ancient
stone in regard to what constitutes bona fide occu
pational requirements. The jurisprudence must
clearly keep up with the advances of medical and
other technological knowledge. With the genuine
progress of such knowledge and techniques, it
becomes obvious that some of the restrictive occu
pational criteria of today may be obviated by
tomorrow's advances in knowledge and technique.
The material times herein, however, remain
fixed for purposes of this litigation. So the Com
mission, in order to avoid exceeding its jurisdiction
to appoint the inquiry tribunal must do so for
proper reasons on legal grounds. Although it
would be difficult for anyone to establish a literal
excess, or loss, of jurisdiction in face of the power
accorded under subsection 49(1) of the Act
[Canadian Human Rights Act, R.S.C., 1985, c.
H-6] ("The Commission may, at any stage after
the filing of a complaint, appoint a ... Tribu-
nal ...") yet, if the Commission seeks to have an
inquiry into matters already clearly established
and determined by law, or to harass an employer,
or for some oblique reason of its, or its officials'
own devising then it will be held to be abusing its
powers. Such abuse of powers, being of the essence
of unfairness and illegality, may be quashed or
prohibited by this Court, if so found. It ought to be
noted that both sides conceded that no new tech
niques, other than those known to be practical by
the Commission, the medical practitioners and the
Courts during the material times are to be regard
ed here.
The employee had been referred in October,
1984, by his family physician to a medical special
ist, Michael J. McGonigal, MB FRCP (C), of St.
John. This specialist wrote to the Commission on
May 8, 1985, exhibit "E", in response to a request
for information of April 25, 1985. The three-page
letter is too long to recite in full, but certain basic
facts can be gleaned therefrom.
At that time [October, 1984], I noted that Mr. Doyle had
developed Diabetes around Christmas of 1983, and had been on
Insulin since that time. I am not aware of his exact presenting
symptoms or how high his initial blood sugars were.
My impression at that time was that he was a very well
motivated and well controlled Diabetic and felt that he would
do very well.
I have no reason to suppose that he will be particularly likely
to develop weak spells or reactions during the course of his
work but clearly that possibility exists in virtually anybody who
is taking Insulin. [Emphasis not in original text.]
[Referring to a paper on medical restrictions on train service
employees, sent to the specialist by the human rights official]
On page five of this paper, the second paragraph, refers to
patients who are on Insulin treatment but who have acceptable
blood sugar controls, then a number of restrictions are advis
able. These include not driving heavy vehicles or assigning of
jobs which require large expenditures of energy in unpredict
able periods of time or the assigning of jobs around power
driven machinery. From the description of Mr. Doyle's work, it
seems that in fact he falls into these categories, in what his job
entails. It may therefore be that he would be excluded from this
form of occupation by virtue of his Diabetes. [Emphasis not in
original text.]
The above passages from the material before the
Court are cited for balance. In terms of objectivity,
or lack of it, it is noted that those passages are
conspicuously absent from the selection of quota
tions of Dr. McGonigal's letter cited in the Com
mission's investigation report, exhibit "G", dated
February 26, 1987.
The respondents here presented evidence to the
Court appended to the affidavit of Réal Fortin.
The exhibits to Mr. Fortin's affidavit are volumi
nous. Among them are several papers on hypo
glycemia in insulin-dependent diabetics, prepared
by learned authors for publication in professional
and academic journals. These exhibits were also
exhibits and the transcript of proceedings at the
tribunal hearing of Wayne Mahon's complaint
which opened on June 3, 1985. Wayne Mahon's
case was subsequently the subject of a section 28
[Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10] application to the Appeal Division of this
Court, somewhat deceptively indexed as Canadian
Pacific Ltd. v. Canada (Canadian Human Rights
Commission), [1988] 1 F.C. 209; (1987), 40
D.L.R. (4th) 586. It would more memorably be
cited as CP Ltd. v. Cdn HRC & Mahon, or merely
as the Mahon case.
From the tribunal's transcript of that case one
notes the testimony of another medical specialist,
Dr. Cornelius J. Toews. The transcript reveals an
unfortunately not uncommon antagonism arising
between the deponent and the cross-examiner, to
be replaced by rather more calm objectivity on the
deponent's part when questioned by the chairman
(and sole member) of the Tribunal. These are the
passages worth reciting here, starting at page 68 of
the transcript, page 73 of the respondents' record:
MR. CHAIRMAN: Well, I guess I was also asking if he
[Mahon] was entirely careful in terms of his personal habits, if
he still lived a reasonable lifestyle, whether there would not be
a problem that he could not control in say, driving a taxi. That
is the kind of question I was trying to ask or could it still be
beyond his control in the sense of hypoglycemia coming on.
THE DEPONENT: You are asking me can I envisage a scenario
where given his diabetes, length of diagnosis, so on and so forth
could he get himself into a situation where he would not be able
to take corrective action? Yes, it is possible.
MR. CHAIRMAN: Even though he was being attendant to his
situation?
THE DEPONENT: Yes, it is possible. It is just reported. We
know that. A person who sees a lot of diabetics knows this.
MR. CHAIRMAN: Even though he always took a chocolate
bar?
THE DEPONENT: Yes.
THE CHAIRMAN: And even though he always regulated the
balancing items?
THE DEPONENT: Yes.
THE CHAIRMAN: It just could be beyond his control in the
given situation?
THE DEPONENT: Yes.
MR. CHAIRMAN: I suppose for that matter, obviously diabet
ics can drive cars but you are saying he could be driving a car
down the street, and it is obviously very improbable, but he
could have a problem suddenly come on that he could endanger
the public?
THE DEPONENT: Yes.
RE-EXAMINATION BY MR. DUVAL
Q. From your examination of Mr. Mahon do you think that
Mr. Mahon falls in that particular group of ten percent of
diabetics prone to major reactions without prewarning?
A. No.
As noted, the transcript from which the above
recited passages were drawn is the transcript of the
Mahon case which was subject to judicial review
in 1987 by the Appeal Division of this Court.
In the meanwhile, and indeed on April 27, 1989,
a Review Tribunal to whom the Commission had
appealed a decision of a one-member Tribunal
concerning an insulin-dependent diabetic, rendered
its decision. This was about two weeks after the
appointment of the Tribunal in the present case at
bar, but some 6 1 / 2 months after the one-member
Tribunal of first instance rendered its decision in
the matter of Gaetz v. Canadian Armed Forces
[(1988), 89 CLLC 17,014 (C.H.R.T.) holding:
In the circumstances of the present case I am satisfied that
the medical restriction placed upon Mr. Gaetz [an insulin-
dependent diabetic] qualified as a bona fide occupational
requirement and that the "real risk factor" in this case is more
than a possibility and is certainly more than a hypothetical one.
I am satisfied that the present case falls well within the
parameters of the Etobicoke and Bhinder cases.
All this was known to the Commission half a year
prior to the appointment of the subject Tribunal in
this case of the employee Mr. Doyle. The cases
referred to in the above recited passage are
Ontario Human Rights Commission et al. v. Bor
ough of Etobicoke, [1982] 1 S.C.R. 202; (1982),
132 D.L.R. (3d) 14; 82 CLLC 17,005; 40 N.R.
159; and Bhinder et al. v. Canadian National
Railway Co. et al., [1985] 2 S.C.R. 561; (1985),
23 D.L.R. (4th) 481; 17 Admin. L.R. 111; 9
C.C.E.L. 135; 86 CLLC 17,003; 63 N.R. 185.
About two weeks after the appointment of the
presently impugned tribunal in regard to Mr.
Doyle's complaint, as above noted, the Review
Tribunal upheld the first-instance decision in the
Gaetz case. Citing the reasons of Mr. Justice
Pratte in the Mahon case, and those of Mr. Justice
McIntyre in the Bhinder case the Review Tribunal
rejected the Commission's submission to the effect
that the employer had a duty to test Mr. Gaetz to
determine his specific suitability for continued
employment prior to his discharge in August,
1985, despite his condition. So it was that in late
April, 1989, holding that in the circumstances of
Mr. Gaetz's job requirements and qualifications
freedom from insulin-dependent diabetes and its
risks was clearly a bona fide occupational require
ment, the Review Tribunal dismissed the Commis
sion's appeal. That which in many instances
evinces virtue can, when pressed to excess, become
a fault. It seems that in the case at bar the
Commission is becoming persistent to a fault.
Section 15 of the Canadian Human Rights Act,
R.S.C., 1985, c. H-6 (formerly section 14)
provides:
15. It is not a discriminatory practice if
(a) any refusal, exclusion, expulsion, suspension, limitation,
specification or preference in relation to any employment is
established by an employer to be based on a bona fide
occupational requirement.
The Commission knows this. The Commission
knows the applicant's position through correspond
ence and through the failed conciliation proceed
ing which preceded the appointment of the
impugned Tribunal. The Commission well knows
that jobs requiring the employee to be physically
active and/or mentally alert at critical but
unscheduled times have, or had at the material
time, a bona fide qualification for anyone
employed therein, that he or she be free of insulin-
dependent diabetes. That must be at least reason
ably necessary to assure the efficient performance
of the job's tasks without endangering anyone's
personal safety. The Tribunal of first instance and
the Review Tribunal in the Gaetz case have made
that proposition plain to the Commission. So has
the Appeal Division of this Court in the Mahon
case, above cited. The Commission well knows the
principles stated by both the greater and smaller
majorities' opinions in the Bhinder case, above
cited: "The test does not vary with the special
characteristics and circumstances of the complai
nant" and "A working condition does not lose its
character as a bona fide occupational requirement
because, apart from paragraph 14(a) of the Act, it
may be discriminatory." as well as "Applying the
requirement to each individual with varying results
would rob the requirement of its character as an
occupational requirement and would ignore the
plain language of the section, [which would
become thereby] effectively read out of the Act".
The Commission knows all this, yet it persists in
abusing its powers by seeking to push on with a
costly inquiry by a Tribunal, and quite possibly
also, a Review Tribunal.
Now, it is plain and true that Parliament has
provided for Human Rights Tribunals to make
inquiries into matters of alleged occupational dis
crimination. Therefore the Court heeds the salu
tary words of caution expressed by the then
Associate Chief Justice Thurlow in Attorney Gen
eral of Canada v. Cumming, [1980] 2 F.C. 122;
(1979), 103 D.L.R. (3d) 151; 79 DTC 5305
(T.D.), and by the same distinguished jurist in his
later role of Chief Justice in Canadian Pacific Air
Lines, Ltd. v. Williams, [1982] 1 F.C. 214 (C.A.).
The Court should be slow to pre-empt the Com
mission and a Tribunal, in most circumstances, but
rather, ought to permit the process to unfold as, in
Parliament's enactment, it should. Even such a
salutary rule may have an exception; and in this
instance there is a salutary one. It resides in this:
where the Tribunal's decision, in order to be cor-
rect in law and evidence, amounts to a foregone
conclusion, the inquiry should be prohibited, as
here, because it will be useless, expensive, disrup
tive, inconvenient and abusive. What is clear to the
Court in this instance ought surely to be clear to
the Commission and any Tribunal.
The Mahon decision of this Court's Appeal
Division is as clear as can be, and in persisting in
creating inquiries into matters already decided, at
least for the material times, the Commission sadly
trivializes the cause of human rights and thereby
also abuses and exceeds its jurisdictional powers.
The three-judge Court in the Mahon case was
unanimous in the result, and two of the judges,
Messrs. Justices Pratte and Hugessen, were unani
mous in expression. This is not a judgment to be
ignored as wrongly decided, as the respondents'
counsel urged. Mahon was a Canadian Pacific
trackman whose duties and working conditions
may have been somewhat more arduous than Mr.
Doyle's, but in obvious effect the lifting, pulling,
standing, mounting and dismounting moving vehi
cles, coupling and uncoupling railway cars and
locomotives in close proximity with moving trains
and equipment in all types of weather conditions
were, like the disease suffered by both men, quite
indistinguishable. The Commission knows all that.
In that Mahon case, [1988] 1 F.C. 209, Mr.
Justice Pratte wrote the unanimous majority
expression. At page 213, Pratte J. reviewed the
medical evidence, some of which is actually recited
earlier herein, having been exhibited here by the
respondents. At page 215, he characterized the
tribunal's conclusions in this way:
The Tribunal decided that the requirement that a trackman
be not an insulin dependent diabetic was not a bona fide
occupational requirement. After referring to the decision of the
Supreme Court of Canada in Ontario Human Rights Commis
sion et al. v. Borough of Etobicoke, [1982] 1 S.C.R. 202, the
Tribunal concluded that, even if the refusal to employ unstable
diabetics might be justified, the risks involved in employing a
stable diabetic like Mr. Mahon were not sufficiently great to
warrant the refusal of Canadian Pacific Limited to employ
him.
The Tribunal's decision, therefore, assumes that it is possible
for an employer to readily distinguish, among insulin dependent
diabetics, those that are stable from those that are not. The
applicant does not challenge that assumption. It attacks the
Tribunal's decision on grounds that relate to the manner in
which the Tribunal determined that the risks involved in
employing stable diabetics as trackmen were not sufficiently
great to warrant the refusal to employ them.
Then at pages 221 and 222 of the Mahon case,
Pratte J. is reported in these significant passages:
The decision of the Supreme Court of Canada in Etobicoke
[above cited] is authority for the proposition that a requirement
imposed by an employer in the interest of safety must, in order
to qualify as a bona fide occupational requirement, be reason
ably necessary in order to eliminate a sufficient risk of damage.
In Bhinder, on the other hand, the Supreme Court upheld as a
bona fide occupational requirement one which, if not complied
with, would expose the employee to a "greater likelihood of
injury—though only slightly greater" (at page 584). The effect
of those decisions, in my view, is that, a fortiori, a job-related
requirement that, according to the evidence, is reasonably
necessary to eliminate a real risk of a serious damage to the
public at large must be said to be a bona fide occupational
requirement.
The decision under attack, it seems to me, is based on the
generous idea that the employers and the public have the duty
to accept and assume some risks of damage in order to enable
disabled persons to find work. In my view, the law does not
impose any such duty on anyone ....
Once it had been found that the applicant's policy not to
employ insulin dependent diabetics as trackmen was reasonably
necessary to eliminate a real risk of serious damage for the
applicant, its employees and the public, there was only one
decision that the Tribunal could legally make, namely, that the
applicant's refusal to engage the respondent Wayne Mahon was
based on a bona fide occupational requirement and, as a
consequence, was not a discriminatory practice.
I would, for these reasons, allow the application, set aside the
decision under attack and refer the matter back to the Tribunal
for decision on the basis that, in view of the findings it has
already made as to the risks of hiring insulin dependent diabet
ics as trackmen, the only conclusion that can legally be drawn
is that the applicant's refusal to hire the respondent Wayne
Mahon was based on a bona fide occupational requirement
and, as a consequence, was not a discriminatory practice.
HUGGESSEN J.: I agree [Emphasis not in original text.]
It is in light of the foregoing passages, in the
background of the confirmed Gaetz inquiry and
the interpretations of paragraph 15(a) of the Act
pronounced by the Supreme Court of Canada in
its Etobicoke and Bhinder decisions, that it is clear
that yet another inquiry into the same issues aris
ing at or around the material times ought surely to
be prohibited. It is an abuse of the Commission's
powers and an excess of jurisdiction. Enough is
enough. The applicant, moreover, conducted itself
with utmost propriety. Because, according to the
applicant's counsel, the appointed Tribunal agreed
to await the outcome of this litigation before
embarking on the inquiry, the Court does not need
to prohibit it in that regard. The applicant's coun
sel also indicated that the applicant seeks no costs
of this proceeding. So, because the Commission
has acted beyond its jurisdictional authority, here,
in appointing this particular Tribunal, the respon
dents Cole, Tippett and Fox, and all others, acting
in their capacity as a Human Rights Tribunal
under the Canadian Human Rights Act are pro
hibited from inquiring into the complaint made to
the Canadian Human Rights Commission on May
17, 1983 by Michael Doyle, or into any similarly
grounded complaint arising from events prior to
Michael Doyle's installation in the job in which he
is presently employed by the applicant railway
company, without prejudice, of course, to any dif
ferently grounded complaint, which has already
actually been formally lodged with the Commis
sion by the complainant, Michael Doyle.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.