Espey and Ontario Human Rights Commission v. City of London and London Professional Fire Fighters' Association

In December 2008, the Human Rights Tribunal of Ontario decided that a mandatory retirement provision in a firefighter collective agreement did not violate the Ontario Human Rights Code.

The collective agreement between the City of London and the London Professional Fire Fighters' Association required suppression firefighters to retire at age 60. Edwin Epsey, who was a district chief, brought a human rights complaint when he was required to retire. He and the Ontario Human Rights Commission took the position that the mandatory retirement provision constituted discrimination on the basis of age under the Ontario Human Rights Code.

The City and the Association agreed that the mandatory retirement provision was prima facie discriminatory. However, they maintained that mandatory retirement was a bona fide occupational requirement and therefore there was no violation of the Code. In this regard, the City and the Association argued that the risk of cardiac events, including heart attacks, increases dramatically with age and that the risk is even higher for firefighters engaged in fire suppression. They maintained that their decision to deal with these higher risks through a mandatory retirement provision was reasonable and that changing the mandatory retirement provision would constitute undue hardship.

The Human Rights Tribunal of Ontario agreed with the City and the Association. It held that the expert evidence demonstrated that there are particular factors about the occupation of firefighters that lead to an exceptionally elevated risk of cardiac events. While methods of individual testing exist that predict risk more accurately than age, there is no scientific research as to whether those methods will work with firefighters, given the particular risks they face. Further, the system of mandatory retirement included protection through an unreduced pension, applied to all firefighters equally and avoided the necessity of testing all individuals, which could lead to prima facie discrimination based on disability. The Tribunal concluded that the City and the Association had successfully demonstrated that the mandatory retirement provision is reasonably necessary to accomplish its health and safety purposes and that modifying it would cause undue hardship. As a result, there was no violation of the Code.

Click here to read the Tribunal's decision

The London Professional Fire Fighters' Association was represented by Howard Goldblatt and Charlene Wiseman.