British Columbia (Public Service Employee Relations Commission) and B.C.G.E.U. (Meiorin ),
Re
Re Province of British Columbia (Public Service Employee Relations Commission) and B.C.
Government and Service Employees' Union
58 L.A.C. (4th) 159
Summarized in 45 C.L.A.S. 158 award set aside 149 D.L.R. (4th) 261 , [1997] 9 W.W.R. 759,
152 W.A.C. 292, 37 B.C.L.R. (3d) 317, 30 C.H.R.R. D/83, 97 C.L.L.C. ¶230-037, 72 A.C.W.S.
(3d) 546 (C.A.) revd [1999] 3 S.C.R. 3, 176 D.L.R. (4th) 1 , [1999] 10 W.W.R. 1, 207 W.A.C.
161, 66 B.C.L.R. (3d) 253, 46 C.C.E.L. (2d) 206, 35 C.H.R.R. D/257, 99 C.L.L.C. ¶230-028, 68
C.R.R. (2d) 1 sub nom. British Columbia, 244 N.R. 145 sub nom. Public Service Employee
Relations Commission (B.C.) v. British Columbia Government and Service Employees' Union,
90 A.C.W.S. (3d) 764 (Public Service Employee Relations Commission v. B.C.G.S.E.U.)
Master Table of Cases
British Columbia
M.I. Chertkow.
September 17, 1996
File No. A-273/96
Discrimination -- Sex discrimination -- Mandatory fitness test for fire-fighters -- Test having
discriminatory effect on women -- Bona fide occupational requirement defence not available in
case of adverse-effect discrimination.
Discrimination -- Sex discrimination -- Discriminatory effect of mandatory fitness test -- Failure
to accommodate to point of undue hardship.
[See Brown & Beatty , 5:2100 ; 6:3360 ; 7:6120 ]
[ p. 160 ]
Cases referred to
Re British Columbia (Government Personnel Services Division) and B.C.G.E.U. (1991), 22
L.A.C. (4th) 118 , 24 C.L.A.S. 98; Re Public Service Employee Relations Commission and
B.C.G.E.U. (Pilas), Ready (February 23, 1995); Re Ontario Human Rights Commission and
Simpsons-Sears Ltd. (1985), 23 D.L.R. (4th) 321, [1985] 2 S.C.R. 536, 9 C.C.E.L. 185, 86
C.L.L.C. ¶17,002, 64 N.R. 161, 52 O.R. (2d) 799 n , 34 A.C.W.S. (2d) 109; Central Alberta
Dairy Pool v. Alberta (Human Rights Commission) (1990), 72 D.L.R. (4th) 417, [1990] 2 S.C.R.
489, 33 C.C.E.L. 1, 12 C.H.R.R. D/417, 90 C.L.L.C. ¶17,025 sub nom. Central Alberta Dairy
Pool v. HRC (Alta.) , [1990] 6 W.W.R. 193, 76 Alta. L.R. (2d) 97, 111 A.R. 241, 113 N.R. 161,
22 A.C.W.S. (3d) 1003; Chambly, Commission scolaire régionale v. Bergevin (1994), 115
D.L.R. (4th) 609, [1994] 2 S.C.R. 525, 21 Admin. L.R. (2d) 169, 4 C.C.E.L. (2d) 165, 22
C.H.R.R. D/1, 94 C.L.L.C. ¶17,023 sub nom. Syndicat de l'Enseignment de Champlain v.
Commission Scolaire Régionale de Chambly , 62 Q.A.C. 241, 169 N.R. 281, 48 A.C.W.S. (3d)
1214; Bhinder v. Canadian National Railway Co. (1985), 23 D.L.R. (4th) 481, [1985] 2 S.C.R.
561, 9 C.C.E.L. 135, 7 C.H.R.R. D/3093, 86 C.L.L.C. ¶17,003, 63 N.R. 185, 34 A.C.W.S. (2d)
108; Central Okanagan School District No. 23 v. Renaud (1992), 95 D.L.R. (4th) 577, [1992] 2
S.C.R. 970, 16 C.H.R.R. D/425, 92 C.L.L.C. ¶17,032, [1992] 6 W.W.R. 193, 24 W.A.C. 245, 71
B.C.L.R. (2d) 145, 141 N.R. 185, 35 A.C.W.S. (3d) 841; Woolverton v. B.C. Transit (1992), 19
C.H.R.R. D/200; Andrews v. Law Society of British Columbia (1989), 56 D.L.R. (4th) 1, [1989]
1 S.C.R. 143, 25 C.C.E.L. 255, 10 C.H.R.R. D/5719, 36 C.R.R. 193, [1989] 2 W.W.R. 289, 34
B.C.L.R. (2d) 273, 91 N.R. 255, 13 A.C.W.S. (3d) 347; Ontario Human Rights Commission v.
Borough of Etobicoke (1982), 132 D.L.R. (3d) 14, [1982] 1 S.C.R. 202, 3 C.H.R.R. D/781, 82
C.L.L.C. ¶17,005, 40 N.R. 159, 13 A.C.W.S. (2d) 1; Brossard (Ville) v. Quebec (Commission
des droits de la personne) (1988), 53 D.L.R. (4th) 609, [1988] 2 S.C.R. 279, 10 C.H.R.R.
D/5515, 88 C.L.L.C. ¶17,031, 88 N.R. 321, 12 A.C.W.S. (3d) 221; Saskatchewan (Human Rights

Commission) v. Saskatoon (City) (1989), 65 D.L.R. (4th) 481, [1989] 2 S.C.R. 1297, 11
C.H.R.R. D/204, 90 C.L.L.C. ¶17,001, 45 C.R.R. 363, [1990] 1 W.W.R. 481, 81 Sask. R. 263,
103 N.R. 161, 18 A.C.W.S. (3d) 1151; Large v. Stratford (City) (1995), 128 D.L.R. (4th) 193,
[1995] 3 S.C.R. 733, 14 C.C.E.L. (2d) 177, 24 C.H.R.R. D/1, 95 C.L.L.C. ¶230-033, 86 O.A.C.
81, 188 N.R. 124, 26 O.R. (3d) 160 n , 58 A.C.W.S. (3d) 281; Dothard v. Rawlinson, 53 L.Ed.2d
786CIT (1977)
Statutes referred to
Human Rights Act, S.B.C. 1984, c. 22 (renamed Human Rights Code , S.B.C. 1995, c. 42, s. 1)
INDIVIDUAL GRIEVANCE concerning lay-off. Reinstatement with compensation; grievance
allowed.
K. Curry and J. Clark , for the union.
P. Gall , for the employer.
AWARD
I
On August 5th, 1994, the grievor, who was a Forest Technician on the Initial Attack Crew in the
Golden Forest District, was laid off. Previously, on June 15th, 1994, she was suspended after
failing
[ p. 161 ]
a fitness re-test for aerobic capacity on June 9th. Her recall rights under the collective agreement
expired after nine months.
It is the position of the union that the aerobic fitness test was not administered fairly by the
employer. Nor was it consistently applied amongst Native Unit Crews, Initial Attack Crews and
Contract Crews. Further, says the union, the aerobic capacity test implemented by the employer
for the 1994 summer fire season has an adverse effect on female fire-fighters because of
physiological differences between men and women. It is discriminatory against women. A
significantly greater percentage of men are able to pass the test than can women. Finally, urges
the union, rather than lay Ms. Meiorin off, it ought have to accommodated her inability to meet
the aerobic fitness standard by placing her in other work within the Ministry of Forests which it
could have done without undue hardship.
As remedy, the union seeks the reinstatement of the grievor to her Forest Technician position and
that she receive financial compensation for lost wages and benefits on the "make whole"
principle. Further, the union seeks an order from this board of arbitration to require the employer
to accommodate female applicants by adjusting the standard for measuring aerobic fitness which
would recognize the physiological differences between men and women or alternatively, to allow
female initial attack fire-fighters to be tested on the lesser standard that is applied to native fire-
fighting crews.
The employer asserts the aerobic fitness tests were administered fairly to Ms. Meiorin . The test
is reasonably related to fire-fighting duties. It measures aerobic fitness to the standard of 50 VO
2 max. VO 2 max represents the maximal rate at which the body can deliver oxygen to working
muscles, then take up and use that oxygen in the muscles to perform work. The test, it says, does
not discriminate against women, either directly or indirectly. The aerobic capacity standard it has
implemented is necessary for the safe and effective performance of their work by Initial Attack
Crew members. Every candidate for that position has his or her physical fitness measured
individually against the standard. It is not related to group stereotypes. The standard does not
effectively exclude women. With proper training women can, and do, pass the test.
The employer says further that if the standards were lowered to ensure more women could pass
them, it would seriously compromise the safety of women who do not meet the standard as well
as their fellow crew members. It would also compromise the
[ p. 162 ]

effectiveness of the government's forest fire-fighting efforts thereby endangering the safety of the
members of the general public, and the preservation of private property and Crown forest land. It
urges the grievance of Ms. Meiorin be dismissed.
The employer says the union is attempting to expand the grievance (Exhibit U-10). There, it
challenged only the unreasonableness and arbitrariness of the test. It was made mandatory in
1994 while in the two preceding years it was voluntary, As well, it had not been applied to all
fire-fighters. Anything else, says Mr. Gall, is not properly before me.
II
Before turning to the issue of the appropriateness or otherwise of the aerobic fitness standard test
that is administered to all Initial Attack Crew members, including the grievor, it is appropriate to
outline, as background, the facts which led up to her layoff.
She was first hired in May, 1992 as an Auxiliary Forest Technician I, Initial Attack Crew, in the
Golden Forest District. In her appointment letter she was advised that at the beginning of her
employment she would be tested to determine her capability. The tests included;
-- 24 push-ups in one minute or less
-- 7 pull-ups (chin-ups) in one minute or less
-- 24 sit-ups in one minute or less
-- run 2.5 kilometres in 11 minutes or less.
Notwithstanding the conditions set out in her appointment letter, she was not given the physical
fitness test nor were other fire-fighters in the Golden Forest District in 1992. At the end of the
1992 fire-fighting season, the grievor was laid off.
The employer was apparently satisfied with her performance. On March 26th, 1993 she was
offered another appointment in the same capacity she had in the previous year. Once again, in
her appointment letter, she was advised her physical condition would be tested.
As in previous years, no physical fitness tests were given to forest fire-fighters in the Golden
Forest District for 1993. However, they were all advised there would be a new fitness standard
introduced in 1994 and that passage of the test would be mandatory beginning in the Golden
Forest District in 1994, as well as in all other forest districts. It would not be a voluntary test, as
was the practice previously in the Golden Forest District. During the 1993 fire-fighting season,
Initial Attack Crew members in the
[ p. 163 ]
Golden District were given fitness passes at a local health club and were allowed one hour each
working day, when not fighting a fire, to do physical fitness training.
The new mandatory physical fitness test, which was designated as the Bona Fide Occupational
Fitness Test, was designed at the University of Victoria under the express mandate to develop
non-discriminatory physical fitness standards for forest fire-fighters in British Columbia.
At the end of the forest fire-fighting season in 1993, Ms. Meiorin was again laid off. On January
18th, 1994 a letter was sent to her in which she was advised the Protection Branch and the
Nelson Forest Region had adopted the Bona Fide Occupational Fitness Test for all initial attack
personnel for the 1994 fire season and thereafter. She was told that if she wished to continue to
be part of the initial attack program, she would have to meet the following standards as a
condition for employment for the 1994 fire-fighting season; Shuttle Run -- minimum stage ten
Upright Row -- 1100 pounds total weight lifted
Pump/Hose Test -- less than 4:10 minutes total time
Body Weight (inclusive of clothing and P.P.E.) Maximum of 200 pounds.
In that letter, she was advised further that she would be required to pass the above tests prior to
being confirmed in her position. She was also told she would be re-tested a minimum of two
additional times during the term of her employment.
Shortly after sending that letter, Ms. Meiorin's supervisor, Bob Beugelan, telephoned her and the
rest of the crew offering the use of equipment to train for the new physical fitness tests.

Sometime around the end of January, 1994, the grievor borrowed equipment to practice for the
tests.
Once again, Ms. Meiorin was offered an appointment as an Auxiliary Forest Technician I, Initial
Attack Crew member, in the Golden Forest District. The term of appointment was from May
2nd, 1994 to September 15th, 1995. The offer was contained in a letter to her dated April 13th,
1994 and it was stated in the letter that she had "to meet the new Bona Fide Occupational Fitness
Standard as outlined in our previous correspondence, prior to being confirmed for employment".
A few days later, the grievor advised Mr. Beugelan because she feared re-injuring her knee (she
had a previous knee injury), she did not want to do the shuttle run component of the Bona Fide
Occupational Fitness Test. Mr. Beugelan advised her she had the
[ p. 164 ]
option of taking the old test (run 2.5 kilometres in 11 minutes or less) if she failed the Bona Fide
Test. That option was given to all recalled employees on unit and Initial Attack Crews. If they
failed the new test, they were allowed to take the test that was required for their units at the time
of their hire. That included native unit crews. However, all new hires, including new hires on the
native unit crew, had to pass the Bona Fide Test as a condition of employment.
On May 4th, 1994, the grievor attempted the new Bona Fide Test but failed. She was allowed to
take the old test which she also did on that day. She did the 2.5-kilometre run in 11 minutes 30
seconds, which was 30 seconds slower than the standard. She attempted the old test again on
May 11th, 1994 and failed it. Her running time was 11:08. However, because her time on the run
was close to the required standard, Mr. Beugelan gave her a "conditional pass". The condition
was that she must pass the next re-test. Another employee, Mr. Lorne Pukas, was also given a
conditional pass on the same understanding.
The next re-test for the grievor occurred on June 8th, 1994. She failed the 2.5-kilometre run
again. Her time was 11:30. All other members of the Initial Attack Crew, including Mr. Pukas,
passed the re-test.
On June 15th, 1994, the grievor was given a further re-test. However, before she commenced her
run, she was advised it had been discovered that the track had been 40 metres too short on
previous runs and that had now been corrected. Once more, the grievor failed to meet the
standard for the run. It took her 11:49.4 to complete it. According to Mr. Beugelan's
observations, she was about 43 seconds over the 11-minute mark by the time she got to the last
40 metres.
It is to be noted the grievor did not express any dissatisfaction or complain about the
administration of the test on June 15th, 1994 or on any previous occasion. Further, all members
of the Initial Attack Crews, including the grievor, were given one hour per day for fitness
training during 1994. The only Initial Attack Crew member who failed to pass the physical
fitness test was the grievor. As a result of her failure to pass that last test, she was suspended.
The employer said she "must be considered physically unqualified to carry out the work required
of Initial Attack Crews, and cannot be included on the active duty roster". Then followed her
layoff on August 5th, 1994 and the subsequent filing of her grievance, the subject of these
proceedings.
[ p. 165 ]
III
I now turn to a summary of the relevant and probative testimony given at these hearings. I have
carefully considered all that evidence but I find it necessary to comment only on the following
matters.
The grievor explained in detail the aerobic tests which she did in May and June of 1994. She
agreed she ran the 2.5-kilometre run in 11:30 on May 4th. On May 11th she did it in 11:08. In
her conversation with Mr. Beugelan he told her the result was "close enough". She felt she could
pass the test the next time she took it and he never told her he had given her a "conditional pass".

On her re-test on June 8th, in which she completed the 2.5-kilometre run in 11:30, she said there
was a 30-kilometre wind. She also faced crosswinds. The running course had changed from her
previous test on May 4th. The May 11th and June 8th tests were run on the airport.
Turning to her re-test on June 15th, she said the employer had extended the course at the airport.
Ms. Meiorin went on to say that when she was suspended on June 15th, she was devastated. She
has lost all her seniority which expired nine months after her layoff.
The grievor then testified as to the work she has done since her layoff. She worked for three
months in the logging industry bucking trees. She has also done bucking as a polecat logger as
well as first aid work. She has also run a skidder in a logging operation. The grievor went on to
say she does ski touring, rock climbing, hiking, cycling and plays tennis. In her opinion, she was
not a safety threat because she failed to pass the aerobic test. She has spent six years fighting
fires without any problems.
In cross-examination, the grievor agreed she continued physical fitness training in 1993. She has
spent time in the gym, swam and cross-country skied. She also agreed she was advised that she
would have to pass the new Bona Fide Occupational Fitness Test for the 1994 fire-fighting
season. She said she started to train for the test in early 1994 and Mr. Beugelan offered
equipment to her and other members of the crew for their training. She said she did not train for
the shuttle run because of risk to an old knee injury. Mr. Beugelan told her she could substitute
the 2.5-kilometre run for the shuttle run. She said that on May 3rd, in a conversation with
forestry officials, she complained about the gender difference between men and women and
expressed the view that women should have extra time to complete the run.
[ p. 166 ]
Turning to her re-test on May 11th, 1994, she agreed Mr. Beugelan told her that she could
"knock it off the next time". He expected she could pass the test with training. She trained "all
the time" until her next re-test on June 8th. She agreed the track was measured that day. She
confirmed she took the test again on June 15th and failed it. Ms. Meiorin said she should have
had another chance to pass the test.
The grievor went on to say that when she was suspended her reaction was that it was "unfair".
Women ought to have more time for the test because it is unrealistic to expect them to meet the
standard. The standard has a negative impact on women. She said while some parts of the tests
related to fire-fighting, other parts did not have much to do with it. In her opinion, fire-fighting is
not that tough a job. It is less dangerous than logging. In her view, the requirement to run 2.5
kilometres in 11 minutes is not related to the job of fire-fighting and discriminates against
women. The test is too strict for them.
The union called Mr. Stephen Brown, who is a laboratory instructor in Kinesiology at Simon
Fraser University. He is an expert in that field. He holds a Master of Science Degree and works
in the Human Physiology Laboratory at the university. He specializes in human performance for
both sport and work. At the request of the union, he prepared a report on aerobic fitness and the
new physical fitness tests used by the Ministry of Forests. His report was admitted as Exhibit U-
12 in these proceedings. He was asked to review a number of scientific reports. They were the
following; Brian J. Sharkey, PHd. (1990 and earlier), and the two University of Victoria findings
-- "Bona Fide Occupational Fitness Tests and Standards for B.C. Forest Service Wildland
Firefighters" (1992) and "Physiological Cost of Wildland Firefighting and Bona Fide
Occupational Fitness Requirements" (1994). As well, he reviewed a pamphlet entitled "Fit for
Duty". The witness said that based on his review of that material and his 15 years' experience
related to the measurement of fitness for work and after referencing a number of other published
works, he came to the following conclusions.
In his view, measurement of aerobic fitness is most accurately done by gas sampling during
progressive work to exhaustion. However, that involves considerable laboratory equipment. As
an alternative, a number of indirect measures of oxygen uptake have been developed including
running a prescribed course within a specific time limit.

Turning to gender differences in aerobic fitness, Mr. Brown noted the following at page 2 of his
report;
[ p. 167 ]
Gender Differences in Aerobic Fitness
Females are less able to do aerobic work than males. This is due to a number of factors.
Females, in general, have a higher percentage of their body mass as fat, and less as muscle. This
is a handicap in any activity where the body mass must be moved (e.g., walking or running).
Females also have less total hemoglobin, less blood volume, and a lower concentration of
hemoglobin in the blood. The blood transports oxygen to muscles and other tissues; almost all of
the oxygen is transported on hemoglobin. Females also have smaller heart volume, lower stroke
volume (the amount of blood pumped with each beat), and lower cardiac output (the number of
litres of blood pumped per minute) than males. Also, (arterio-venous) 02 difference is lower for
females. This means that females have more trouble getting oxygen to muscles, and have less
muscle able to use the oxygen (ACSM Resource Manual, p 68-69 + 79; Astrand + Rodahl, pp
318-322; Fox, pp 376-389 and 395-399) (Figure 1).
Based on those physiological differences, he commented that it is not surprising the average
female has lower VO 2 max than the average man -- some 15% to 25% lower was noted in
several studies. He commented further at page 3;
The figures in Dr. Brian Sharkey's report (Entry #2) show the same gender handicap in aerobic
fitness in college students. "The average male college student scores between 45-48, while the
average female scores around 40 ml/kg-min" (p. 5). The step test scores for the Caucasian
woodland fire-fighters and associated workers that he measured show a VO 2 max predicted
from the step test to be 54.7 and 48.5 for the males and females, respectively (Entry #3, p. 12).
No figures for non-Caucasian females are presented. In summary, females clearly have lower
VO 2 max, and poorer scores on aerobic tests, than do males.
The witness then turned to problems in predicting aerobic fitness from running times. He noted
the individual must first be motivated to give a maximal or near maximal effort. Secondly, the
individual must be efficient at running. An experienced runner can run faster than an
inexperienced one, even though they both have the same VO 2 max. Thirdly, he said, a good
score on a timed run depends on pacing. Finally, he observed anaerobic energy can make a
substantial contribution to running performance. Anaerobic energy supports high intensity work
for up to about two minutes. This energy, he said, is stored in the muscles and does not depend
upon the lungs, heart or blood. Over relatively short distances, such as 2.5 km, a person with
superior anaerobic fitness can run faster than his/her aerobic system will support. That would
cause predicted VO 2 max to overestimate actual VO 2 max. The witness summarized his views
on that topic at page 5;
In summary, while directly-measured VO 2 max has been shown to be related to 2.5 km
running time for groups of individuals , there are problems in predicting the VO 2 max of a
particular individual from his/her running time. For this reason, such running tests are best used
as a rough guide to a person's aerobic fitness, and to show improvement on a retest following
[ p. 168 ]
aerobic conditioning. Running tests which specify a pace (e.g., running on a treadmill, the
shuttle run in which a person runs back and forth a gym keeping pace with an audiocassette)
essentially eliminate the pacing problem. Other tests such as heart rate during stair stepping to a
metronome eliminate the motivation, pacing, and anaerobic problems. All tests have the
efficiency problem. This will be discussed later.
Mr. Brown then dealt with the significance of the aerobic fitness of a slower 2.5-km runner. That
does not necessarily mean, he said, that the person has a lower aerobic fitness. If it does, it may
have negative implications for fire-fighting. He said it was obvious that a certain amount of
aerobic fitness is needed for fire-fighting. He then turned to Dr. Sharkey's report and the 1992
report of the University of Victoria group. He said it gave a clear picture of a long work day with

a sizeable portion spent doing physically demanding tasks under adverse environmental
conditions. The report concluded that the fitness required was 48 ml·kg- 1 ·min- 1 .
He then commented that there are a number of methodological and logical deficiencies in the
reasoning which led to that conclusion. Because of those deficiencies he did not agree with that
finding for the following reasons.
First, he said, the individual might reduce his/her work rate so that he/she was working at the
same percentage VO 2 max as the rest of the (presumably aerobically fitter) crew. He conceded
that would decrease the productivity of the crew and might make it more difficult to contain a
fire during initial attack. Or, another crew member might work harder to compensate. If that
crew member had a superior aerobic fitness, such compensation would be possible with no risk
to any of the crew. He noted, however, at page 6;
... if the other crew members are marginally aerobically fit and increase their workrate to
compensate for an aerobically-deficient member, this would place the fitter crew members in
greater jeopardy.
He went on to say that alternatively, the less aerobically fit individual might keep pace with the
crew by working at a higher percentage of his/her VO 2 max. If that were done it;
... would increase the probability of whole body metabolic fatigue. Fatigue would be
increasingly likely as the day progressed, and over a number of days or weeks of prolonged work
at this intensity. This fatigue would increase the susceptibility of the individual to illness and
injury. Also, fatigue might result in an error which would jeopardize the safety of the whole crew
[at page 6].
Mr. Brown then suggested another scenario and that is the less aerobically fit individual would
experience heat loss. He noted that blood flow is needed by both the aerobic and heat loss
systems.
[ p. 169 ]
Substantial heat loss is needed during moderately strenuous work, even in moderate (20ºC)
climates.
A final possibility, he said, is that a less aerobically fit individual could have sufficient skills and
experience so that there is no deficiency in individual or crew productivity or safety. He said he
has observed that type of phenomenon many times.
Turning to the question of whether the minimum VO 2 max of 48 ml·kg- 1 ·min- 1 is required
for wildland fire-fighting, the witness said: "I don't know. This may be an appropriate standard".
He went on to say, however, that the materials he was provided for review did not present a
sufficiently strong case. There are a number of deficiencies that caused him to believe that
standard has not been properly validated.
The witness then went on to discuss in detail the findings of the Sharkey et al study. In summary
he found four deficiencies that undermine, in his opinion, the aerobic fitness standard set out in
that document. They are, he said;
-- sample biased to only include those with predicted VO 2 max at least 45 ml·kg- 1 ·min- 1
-- aerobic fitness standard not set on basis of average work performance as were the standards
for the other three fitness tests; instead a "reasonable" standard was set, apparently rather
arbitrarily
-- step test only explains 24% of variance in work performance
-- missing data from the "hike" field test [at page 10]
Mr. Brown then turned to the two University of Victoria studies that gave rise to the 1992 and
1994 reports. He criticized those studies at some length. In summary, he said, at page 14, they
suffered from three main deficiencies;
-- lumping students with forestry recruits in the validation study
-- using a different method and inconsistent reasoning in setting aerobic fitness standards
compared with standards for the other fitness tests
-- probable overestimation of the oxygen cost of fire-fighting due to:

-- predicting all-day pace from 15- or 20-minute simulations
-- insufficient sampling of oxygen uptake during the simulations in the 1994 study
-- elevation of heart rate due to arm work.
In cross-examination, when asked if he agreed that Dr. Brian Sharkey is a leading expert in the
field, the witness replied he did not know if that was so. He was not aware of the work of Dr.
G.M. Budd. He conceded he has not read any of the literature pertaining to fire-fighting. He
observed that the methodology and procedure is generic and applies in all fields. When asked if
fire-fighting is
[ p. 170 ]
one of the most physically demanding jobs in the public sector, the witness agreed it is. He was
asked if it is necessary to set standards of physical fitness in order to ensure safety and
effectiveness of fire-fighters engaged in that work. He replied in the negative. However, he
agreed conditionally that if appropriate and correct standards are in place and have to be met by
all fire-fighters he would expect women to do the same tasks as men. The first task, he said, is
where to set the standards. He agreed it was necessary to first find out what the job involves.
With respect to the findings in the University of Victoria studies, he expressed the opinion that
they do not give enough information for anyone to determine if the standard of 50 VO 2 max is
appropriate. He had objections to the methodology and the conclusions reached in those reports.
He also takes issue with the views expressed by Dr. Sharkey which were adopted in those
studies. He conceded that a run or some other field test was more cost effective in measuring
physical fitness than tests done in a laboratory.
The witness was shown Exhibit E-17 which is a paper on Cost Effective Selection of Firefighter
Recruits prepared by the Institute for Human Performance at Simon Fraser University of which
he was one of the authors. He agreed he recommended a run as a testing method. He agreed with
counsel for the employer that at page 663 of the Simon Fraser University paper, the authors
accepted;
The well-validated Cooper 12-min run test (6.10) measured cardiovascular fitness. A
minimum passing standard was 2.816 m (1.75 miles) sets a standard over 50 VO 2 max, higher
than the standard recommended in the University of Victoria study.
The witness pointed out, however, that the Simon Fraser University study was concerned with
groups of people. A run is a good predictor for them but in the case of individuals, the test results
can be off anywhere from 6% to 9%. There is more error in the run than in other methods; e.g.,
stairs. One test, he said, is not a definitive measure of aerobic capacity. When it was put to the
witness that all other experts say that the most appropriate measurement is a run, Mr. Brown
agreed he is not in a better position than they are to give that opinion.
The witness was then directed to Exhibit E-16, which was Dr. Wenger's report in response to his
report on aerobic fitness and Ministry of Forest physical fitness tests. He agreed that in the case
of Ms. Meiorin , she was highly motivated but in a distressed state. He disagreed, however, with
Dr. Wenger's conclusions with respect to the anaerobic component. The witness agreed with Dr.
[ p. 171 ]
Wenger's comments that while the standard of 50 VO 2 max was above average, it was not an
elite standard. He disagreed with Dr. Wenger's conclusions that females can pass the test
"easily". Some will be able to do so, he said, but many more will not because of the difference in
genetic makeup between men and women. When asked if it is not true that elite women athletes
can reach 80-85 VO 2 max, he replied that would be extraordinary. Elite university runners reach
a VO 2 max of 65. In his experience, women never attain a VO 2 max of 80. He also disagreed
with the statistics that properly trained women can meet the 50 VO 2 max standard in 35% of the
cases. He said he would "guess" it would be more like 10%. He conceded he did not have any
statistics to support that opinion.
I now turn to the evidence presented on behalf of the employer.

Mr. Gary Hartwick is the Assistant Director of Protection Program for the Ministry of Forests.
Admitted as Exhibit E-18 was a summary of the responsibilities and activities of the Protection
Program as of January 26th, 1996. The normal operating complement during the fire season
consists of 118 Initial Attack Crews comprised of three people each. There are 23 sustained
action crews comprised of 20 people each. In addition, there are air tanker bases, regional fire
control centres, an air tanker dispatch centre, a fleet of 22 air tankers, 3 transport aircraft, 18
helicopters, 2 fire equipment depots as well as primary and secondary lookouts, lighting location
system sites and 203 fire weather network station sites.
In order to meet the wildfire challenge, the witness said a large number of seasonal employees
are hired to meet fluctuating fire suppression demands. The program strives to recruit highly
motivated seasonal staff.
He went on to say that the mandate of the program is to attack and suppress wildfires by the use
of fast Initial Attack Crews while the fire is small. That approach is 94% successful. He said unit
crews are persons who deal with the remaining 6% of fires. They are sustained action crews and
their primary role is to suppress fires that can reach several thousand hectares of land.
Mr. Hartwick commented on the grievor's evidence that the physical demands and dangers of
fire-fighting are "not that great". In his view, members of Initial Attack Crews are involved in
work that is very physically demanding and potentially very dangerous. He disagreed with Ms.
Meiorin's suggestion that experience counts more than physical fitness. A physically fit,
experienced fire-fighter is more productive. As to Ms. Meiorin's comments that she has never
been put in a dangerous situation where she had to run away from a fire, the witness said the
object is to avoid such a
[ p. 172 ]
situation at all costs. Conditions can change very rapidly and the risk is always there.
The witness then outlined the history of the steps taken by the Ministry to measure the physical
fitness of its personnel. In 1988 the U.S. Forest Service Smoke Jumper's Test was instituted as
the standard. That test was designed by Dr. Sharkey and it is supported by most experts with
very few exceptions.
Mr. Hartwick observed the step test was first introduced in the late 1980s for unit crews.
Originally unit crews were made up of casual hires in certain parts of the province on an as- and
when-needed basis. Before then, there were no fitness requirements for casual hires. The step test
was an attempt to introduce a physical fitness standard and they were given three days' training.
It allowed the Ministry to take casual hires on an individual basis and easily test them. The
smoke jumper's test requires a large group of persons to be involved in the test and there are time
constraints. It became the view of the Ministry that the smoke jumper's test gave a reasonable
measurement of physical fitness and it was used in training personnel.
The witness then identified Exhibit E-2 which was a physical fitness program introduced by the
Ministry on October 10th, 1990. It included a run of 2.5 kilometres in 11 minutes or less.
The witness then referred to a report prepared by Dr. Sharkey for counsel for the government in a
case that was heard by Arbitrator Hugh G. Ladner, Q.C., between these parties the Bouchard et
al. Grievance , award dated June 7th, 1991 (unreported) [now reported Re British Columbia
(Government Personnel Services Division) and B.C.G.E.U. (1991), 22 L.A.C. (4th) 118 ].
I observe at this point that Arbitrator Ladner upheld the physical fitness tests administered to the
helitack initial crew in the Cariboo Forest Region. Included in the test for that crew was the 2.5-
kilometre run in 11 minutes or less. The employer there relied heavily on the evidence of Dr.
Sharkey whom Arbitrator Ladner described as "a widely acknowledged expert in the
development, validation and institutionalization of job-related fitness tests for wildland fire-
fighters" (at page 5 [p. 120 L.A.C.]). With respect to the physical fitness tests the grievors were
expected to pass, Arbitrator Ladner adopted the opinion expressed by Dr. Sharkey [at p. 121
L.A.C.];

"Taken as a whole, the standards seem both reasonable and consistent with the results of our
criterion-related field study. They are especially appropriate for an elite crew that is considered
the first line of defense in the fire
[ p. 173 ]
control effort. The standards are well within the reach of motivated men and women interested
in this strenuous form of employment " [Emphasis added].
Arbitrator Ladner then noted at page 7 [p. 121 L.A.C.]; "The union does not challenge Dr.
Sharkey's evidence". Later, at page 8 [p. 122 L.A.C.], Arbitrator Ladner observed;
An employer is entitled to establish reasonable qualifications for a job. A corollary of this
proposition is, I believe, the proposition that an employer is obligated to provide employees with
a reasonable opportunity to establish that they can meet those qualifications.
The witness then referred to an award between these parties by Arbitrator Vince Ready, the Pilas
and Williams Grievances , dated February 23rd, 1995, which incorporated a Memorandum of
Settlement of the grievances which, he said, clarified the issue. In particular, the settlement dealt
with the system of recall of auxiliary fire-fighters under article 31.05(b) and the opportunities
they would have for re-testing for physical fitness if they failed a test.
Mr. Hartwick said after the Ladner award was handed down, the employer contracted with the
University of Victoria to examine fitness standards for fire-fighters. The employer wanted the
university to look at physical fitness tests for suppression activities to see if other methods might
be more appropriate and if the smoke jumper's test was the best one available. As a result of their
studies, they came up with the Bona Fide Test. Old employees who failed the Bona Fide Test
could take the test that applied to them when they were first hired.
The witness then turned to forest service statistics involving women fire-fighter applicants. In
1995 of a total of 800 to 900 Initial Attack Crew personnel, 100 to 150 were females. 35% of
females passed the Bona Fide Test the first time they took it. 65% to 70% of males passed the
first time. For people who failed either the shuttle run or the 2.5-kilometre run, it would not have
been practical to have them undergo a laboratory testing procedure, he said. It would be
impractical because of the spread of over 50 locations of Initial Attack Crews and further, testing
would be required three or four times per year. It would create operational problems.
The witness commented on the union's suggestion that there be different standards for women
because of physiological differences with men. He said in his experience that would create a
morale problem. Tests that have been adopted for the Initial Attack Crews are appropriate,
necessary and are applied consistently. It is a single standard for everyone. If different standards
were
[ p. 174 ]
adopted for women it would create animosity. Finally, Mr. Hartwick commented that Workers'
Compensation Board statistics of the costs of injuries, since the Bona Fide Test has been
established, have dropped considerably. From a high of $1.5 million dollars per year in the 1980s
they now amount to less than $100,000.00 per year.
In cross-examination, the witness was shown employer's Exhibit E-18 and he was asked of the
118 Initial Attack Crews, which would consist of 354 persons, how many were women? He
replied 20 to 25. He said further, that he has had experience as a logger and in his opinion there
is a higher degree of danger involved in fire-fighting.
I now turn to the evidence of the expert witness tendered by the employer. He is Dr. Howard
Wenger, who is a Professor in the School of Physical Education at the University of Victoria. He
was involved in the preparation of the 1992 and 1994 reports which led to the adoption of the
Bona Fide Occupational Test by the employer.
Dr. Wenger has been a member of the School of Physical Education at the University of Victoria
since 1980 and has been a full professor since 1983. His speciality is exercise physiology as
applied to sport and occupational tasks and fitness. He had a role in the first study done by the

university for the employer in 1992. He helped formulate the suggested testing procedure. He
was directly involved in the 1994 report with analysis and documentation.
He has researched fire-fighting and physical fitness. The leading experts in the field, he said, are
the Sharkey group, an earlier Bernard California study and the Budd group in Australia. Filed as
Exhibit E-21 is the abstract entitled Stress, Strain and Productivity in Australian Wildfire-
Suppression Crews authored by Dr. G.M. Budd and others. He noted the following preliminary
conclusion reached in the study;
This is extremely strenuous work, comparable to the heaviest industrial and forestry tasks. It
imposes a need for fire-fighters to be fit and healthy, and to wear clothing of a kind that will let
them dissipate such massive heat loads [at page 2].
The witness then went on to say the mandate in 1992 for the university was to determine a Bona
Fide Occupational test for the Ministry of Forests. It was to develop minimum standards for the
safe and effective performance by fire-fighters of the tasks associated with wildfire fire-fighting.
He said human rights legislation was at the forefront of the concerns of the group. They were
sensitive about setting the standard too high. They were
[ p. 175 ]
concerned that the establishment of a cut score, if too high, could result in false negatives. If the
cut score was too low, that could result in false positives.
In considering the measures of what was necessary for physical fitness standards, they talked to
fire-fighters about their jobs; what they had to do and the nature of their tasks. They then
designed a series of tests to isolate the components involved in fire-fighting; i.e., hose pull, pump
carrying to simulate job conditions and then to verify the components with the fire-fighters
themselves. Dr. Wenger then testified as to the nature and the demands of the tasks faced by fire-
fighters. To measure energy expenditure, they examined the VO 2 standard in relation to heart
rate and energy costs. It had to be done directly in the field. It was also important to measure
needed productivity for a fire-fighter working at an all-day pace. Base validity was obtained
from experienced diggers. That led to a decision as to what is reasonable -- not the very best, but
what is the effective amount of energy required. The study established the reasonable cutline of
48 VO 2 . However, 48 was the figure under ideal conditions but they do not always exist.
Therefore, the cutline was moved to VO 2 50. That decision was arrived at on an objective basis
based on demands of the job and the environment in which fire-fighters work.
Having established the VO 2 50 standard, it was then necessary to find a test to measure it. The
group, he said, designed situations that truly simulated job requirements to make the test job
specific. They took into account all the variables identified by Mr. Brown in his report, as best
they could.
At the end of the day, the University of Victoria group decided the test for VO 2 max would be
the shuttle run. That was chosen because it was felt what was needed, was a predicted test. The
smoke jumper's 2.5-kilometre run is such a predictor test but establishing pace is a problem with
it. In the judgment of the group, the highest predictor was the shuttle run where pace is set by a
metronome. The stage 10 shuttle run standard measures VO 2 max at 50. The 2.5-kilometre run
is a bit lower, said Dr. Wenger, being 48 to 49.5 VO 2 at 11 minutes. He observed the Sharkey
group standards include the 2.5-km run in 11 minutes.
Dr. Wenger said, in general, women are less able to do aerobic work than men. VO 2 50 is above
average but it is not an elite standard. In his view, the average for females is 30 to 40 and for
males -- 40 to 45. That depends on the population and sampling methods. He did not disagree
that it is more difficult for women to meet the 50 standard than men. Based on previous studies,
[ p. 176 ]
personnel who train for a period of four months to one year are able to change the range of VO 2
from 5% to 25%. He was of the further opinion that most men and women can meet the 50
standard if they are healthy including all men in the age range 20 to 35 years. However, he
conceded some women would have great difficulty but most females, a large percentage, could

meet the standard. He noted further that the older one gets, the more difficult it would be to meet
the standard.
The witness then commented on the opinions expressed by Mr. Brown that females who failed
the 2.5-km run within 11 minutes should be tested by direct means. He said quite sophisticated
equipment would be involved -- at least $50,000.00 per unit. It is not a question of lowering the
standard, just measuring it more accurately. A direct test would be accurate within 1% to 2%
while there is a 5% factor in the predicted tests, like the 2.5-km run. He agreed the problem of
pacing, which is not a factor in the shuttle run, could be a deficiency in the 2.5-km run if the
candidate was running too fast or too slow. However, training over time would help overcome
that problem. The employee would "get smarter" and learn how to pace him or herself. Dr.
Wenger also discussed the anaerobic component. It is a non-VO 2 supplier of energy.
Dr. Wenger commented further that no fire-fighting department, to his knowledge, is using direct
testing to measure VO 2 max. The 2.5-km run is still being used as is the step test. However, the
step test has inherent flaws. There are variabilities because the tests are not precisely accurate.
But that variability does not depend on sex differences. In the step test, the shorter step height is
an attempt to adjust for that. While the procedure is different, the standard is the same for men
and women performing the step test.
I now turn to the cross-examination of the witness by counsel for the union.
Dr. Wenger conceded the University of Victoria group did not assess female fire-fighters who
did poorly on the aerobic test with their actual job performance. As to the issue of "pace", he said
heart rates were measured to see if the work can be sustained over a long period of time.
The witness's attention was drawn to the 1994 report of the University of Victoria group. In
particular, the section dealing with Standard Selection as appears at pages 24 and 25;
Standards for both fitness and job related tests are selected by determining a cut score. The cut
score is the minimum test standard that must be met by all recruits or incumbents in fulfilling a
B.F.O.R. There is no single method of determining cut scores but its' establishment should be
dependent upon the
[ p. 177 ]
available labour pool, desired level of productivity, safety and fairness to different genders and
minorities (Jackson, 1994). Jackson (1994) states that the most important concern when setting a
cut score is to determine how well candidates are classified for a given test. That is, what
percentage of individuals whose test scores fall below the cut score can perform the job or task
successfully (True Positives). There will always be some misclassification because tests cannot
be perfectly valid, but the test and associated cut score should be reasonably " sensitive " and "
specific ". Test sensitivity is the percentage of those who cannot do the job and miss the cut
while test specificity is the percentage of those who exceed the cut and can do the job (Jackson,
1994). Judging job performance in order to analyze the appropriateness of cut scores can be
difficult in a sample that has already been hired (and fitness screened), since the percentage of
individuals that cannot adequately perform the job may be low. In assessing the adequacy of the
B.C.F.S. standards this is a difficulty, however it can be overcome to some extent by quantifying
the physiological demands of the tasks themselves, and looking for clusters or gaps in
performance of the fitness tests and standards.
The witness agreed that it is necessary to weigh in the factor of fairness (social conscience).
However, he said, if the level is lowered, it may result in having more false negatives. He agreed
further, that it is necessary to have criteria that give an objective measurement. He agreed with
counsel for the union that if the cut score failed 80% of the current active employees, it would
not be consistent with normal expectations. His attention was then directed to pages 5-6 of the
1994 University of Victoria report where the following appears;
Only 20% of the District Unit Crew members were able to meet the aerobic fitness standard
for the 20m Shuttle Run (Stage 10) set from the 1992 study (VO 2 max = 50 mL.kg -1 .min -1 )
while 100% of the Branch Unit Crew members reached this criterion (Figure 2).

Dr. Wenger conceded that there are shortcomings in all tests.
The witness's attention was then directed to the impact of training and in particular, to Mr.
Brown's testimony that training can only increase aerobic capacity anywhere from 5% to 25%.
He agreed there are no published studies that would indicate training over a period of time would
increase capacity above 30%. He expressed the view that in his experience, a fire-fighter will
continue to improve to the genetic ceiling. Male and females are both able to meet the VO 2 50
standard. He said all men can meet that standard and almost all women. He was asked, as a
scientist, if he had studies to support his opinion. He replied that he was asked for his opinion
and he based this on his experience, not scientific studies.
[ p. 178 ]
Dr. Wenger conceded further that bushland fire-fighting in Australia, the subject of the Budd
studies, was different from forest fire-fighting in British Columbia.
Turning to the issue of safety and the cut-score recommended by the University of Victoria
studies, he was asked if there could be a safety risk with respect to the need to exit a fire quickly.
He replied in the affirmative and stated that productivity is also a matter of concern but they are
two independent things. He said the study did not look at running away from a fire as a VO 2
standard. As to the variabilities encountered in the use of the 50 VO 2 max standard, Dr. Wenger
agreed that sometimes the variabilities can be quite large -- 10% or higher. However, he said
they tried to minimize them. The more times the test is given, the more it tends to get to a fire-
fighter's real aerobic fitness score.
The next witness called by the employer was Mr. Bob Beugelan, who is a Fire Protection
Officer. Prior to taking his current job a year and one-half ago, he was the Resource Officer
Protection in charge of the Golden Protection Program from December, 1990 to February of
1995.
He said that in the years 1992 and 1993, it was not a requirement that Initial Attack Crew
members pass the physical fitness tests. That was because first, he was not sold on the tests
themselves. In addition, there were several ongoing grievances, including Bouchard et al. and
finally, new tests were on the way. It was his decision not to make the tests mandatory and await
the new tests. Initial Attack Crew members were warned of the new tests as were new hires. If a
fire-fighter was reasonably fit and with training, he or she should have no problems passing the
new tests. He confirmed his letter of January, 1994 to all employees on the recall list advising
them they would have to pass the new tests. As well, he telephoned all Initial Attack Crew
members advising them of his offer to use equipment for training purposes. The grievor took him
up on his offer. He confirmed she telephoned him in the spring of 1994 and told him of her knee
problems stemming from an old ski injury and her concern about doing the shuttle run. He told
her not to be too concerned because she could take the 2.5-km run as an equivalent to the shuttle
run. However, later he was told by forestry department officials that he was in error by offering
one or the other test. All Initial Attack Crew members would have to take the new Bona Fide
Occupational Fitness Test, including the shuttle run. If the person could not do the shuttle run,
then he or she could take the 2.5-km run.
The witness said the grievor did not express any concerns about gender-based tests until after she
failed the runs. Nor did she ever
[ p. 179 ]
complain about how or where the tests were administered to her. She wanted more time. Ms.
Meiorin was of the opinion that women should be allowed 12 minutes to do the 2.5-km run. In
effect, she was asking him to change the standard and he had no authority to do so.
Ms. Meiorin was not laid off after she failed the tests on May 4th and 11th because he did not
want to lose her. She was one of his better employees. She had a very good demeanour, and did a
fair quantity of work. She was not the best fire-fighter under his supervision but she was far from
the worst. In addition, she held a First Aid Certificate and he felt a sense of loyalty to her.

The witness went on to say that after doing the run in 11 minutes 8 seconds, with training, she
should have been able to meet the 11-minute standard. The crews were not busy at that time and
that is why he gave her a conditional pass. However, he told her she would have to pass her next
re-test. The re-test was for the whole crew. He fully expected she would pass. She took the test
on June 8th and failed. She was 30 seconds slow.
The witness explained there was no track in Golden so he let the crew choose their own. They
decided to use the dike which is a gravel road behind the District Forestry office. The length of
the run was measured at 1.25 km out and back. It was used only for the test she took on May 4th.
Because of traffic problems, an alternate site was chosen and that was at the Golden, B.C.
airport. It is paved except for 20 to 30 meters and it is relatively flat. It was also measured the
same way; 1.25 km out and back. However, the track at the airport was remeasured on a tight
chain basis. It was found the run was 40 metres short. Ms. Meiorin was advised of that a couple
of days before she took her final test. She had been practising on a measured 2.5-km running
track in Revelstoke. She was allowed one hour per day for training or equivalent work in the
spring of 1993. As well, she was given passes to a local fitness centre. When he told her the track
was 40 metres short he could not recall anything special about her reaction. He conceded,
however, she was upset with the whole process. She failed the test which he administered. He
said further, that Ms. Meiorin had no criticism whatsoever about the administration of that test.
The first time he heard of her complaints was at this arbitration hearing. If she had complained at
the time she was stressed because her job was on the line, he would have given her another
chance. He did not want to lose her. He had the authority to do so based on extenuating
circumstances. However, there were no such extenuating circumstances in her case. Her only
complaint was
[ p. 180 ]
about the biological differences between men and women and he had no authority to change the
standard on that basis.
In cross-examination, the witness conceded that after her layoff, Ms. Meiorin was given a letter
of recommendation. He agreed with it and said she was a very good employee and used him as a
reference. The fact that she held a First Aid ticket was a big factor when she was first hired.
In response to further questioning, with respect to her failure on the June 8th test, he said she did
not complain to him about headwinds. If she did complain to others it was not passed on to him.
He said Ms. Meiorin was generally upset during the entire seven days in June. She was in some
state of emotional upset and that was true also during the month of May.
The witness was then questioned about contractors who provide forest fire-fighters for the
Ministry when it is necessary to bring in extra personnel. He agreed there is no physical fitness
tests for them except for those whose jobs are primarily on initial attack. They require only
minimum training because they are not on the front line.
With respect to native unit crews, the witness said that since 1994 new hires who failed the Bona
Fide Occupational Test are allowed to fall back on the step test. He conceded that in 1994, when
casual hires were used to fight forest fires on an emergency basis, no physical fitness tests were
required of them but they were not used on Initial Attack Crews.
The witness conceded he has never had occasion to run out of a fire. He tries not to put people at
risk. However, he has had occasion to evacuate crews.
IV
I now turn to a summary of the extensive written and oral arguments of counsel as presented to
this board of arbitration.
Mr. Curry commenced by asserting the grievor suffered adverse-effect discrimination when she
lost her job because she ran 2.5 km in 11 minutes, 49 seconds, being 49 seconds over the
standard established by the employer. That standard had a discriminatory effect on Ms. Meiorin
because of her gender. The aerobic capacity of most women is less than that of most men. The

standard of 50 VO 2 max is achievable by most men but not by most women. The fitness test,
therefore, denied Ms. Meiorin an equal opportunity for employment on an Initial Attack Crew.
Next, argues counsel for the union, the employer was unable to prove accommodation to the
point of undue hardship because no effort was made to adjust the cut score of 50 VO 2 max to a
level
[ p. 181 ]
achievable by more women. The cut score of 50 VO 2 max was never validated against the job
performance evaluations of women fire-fighters who participated in the test sample. Finally,
failure to meet the cut score was never proven to cause a safety risk or to mean that an employee
could not work productively.
He points to the evidence that Ms. Meiorin is a fit woman who engages in strenuous logging
work and physically demanding extracurricular activities. In her previous employment on the
Initial Attack Crew, she received good work performance assessments. Here, we have a fit
female employee who performed well on the job but nevertheless was terminated because of a
near miss on an invalidated fitness test. There is no question, he says, that women are adversely
effected by the fitness test standard; nor can there be any question that Ms. Meiorin can be easily
accommodated by a number of methods, including allowing women to continue working if they
fall within the tests margin of error.
In support of his assertion that women are adversely affected in the instant dispute, Mr. Curry
turned to the decision of the Supreme Court of Canada in Re Ontario Human Rights Commission
and Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 (S.C.C.) ( O'Malley ), which is referred to in a
subsequent decision of the Court in Central Alberta Dairy Pool v. HRC (Alta.) (1990), 90
C.L.L.C. ¶17,025 (S.C.C.), at page 16,247. The employment rule as to the fitness standard
instituted by the employer in the instant case has a discriminatory effect on women. It imposes a
penalty or a restrictive condition not imposed on men and unfairly burdens most women with an
unreachable standard.
Counsel then argued the tests have a discriminatory effect on women because women are less
able to do aerobic work than men because of different physiological characteristics when
compared with men. Being physiologically less able to do aerobic work, most women have a
lower VO 2 max than most men. That proposition has not been disputed by the employer. Thus,
fewer women will be able to achieve the 50 VO 2 max required on the fitness test because of
physiological differences. He points out that out of a work force of 354 Initial Attack Crew
members, only approximately 20 to 25 are women. The 1995 female applicants pass rate for the
Initial Attack Fitness Test was 35% compared to the male applicants pass rate of between 65%-
70%. Therefore, women are clearly adversely affected by setting the fitness standard of 50 VO 2
max.
Counsel then turned to the evidence of Dr. Wenger on the effect of training in increasing the
overall capacity of women to meet the 50 VO 2 max standard. While Dr. Wenger testified in-
chief that
[ p. 182 ]
most women can do so with training, in cross-examination he admitted his statement was not
based on any scientific studies or published papers but on his personal observations of trained
athletes. That, he said, is contrasted with Exhibit U-22, the American College of Sports
Medicine's Position paper, which noted that depending on the quantity and quality of training,
improvement in VO 2 max ranges from 5% to 30%. That evidence too has not been disputed by
Dr. Wenger. Thus, if the average woman's aerobic capacity is 35 VO 2 max then the outside
benefit from training is a 30% increase. Therefore, the potential the average woman has for
increasing her aerobic capacity is up to a VO 2 max of 45.5. If the average man has an aerobic
capacity of 43 VO 2 max and his maximal benefit from training is a 30% increase, he could
increase his aerobic capacity to 56 at the outside. Counsel argues that contrary to Dr. Wenger's
evidence, the scientific evidence presented to this board establishes that most women cannot

meet a VO 2 max standard of 50 given the lower starting VO 2 max for females and given the
maximum increase of 30% if properly trained. Thus, women as a group are affected differently
by the 50 VO 2 max than are men. That being the case, the O'Malley definition of adverse-effect
discrimination is met.
Counsel then turned to the collective agreement between the parties and noted they subscribed to
the principles of the Human Rights Act, S.B.C. 1984, c. 22, and it is not in dispute that the
employer's policy of employment equity acknowledges its commitment to providing a work
environment free of any form of adverse-effect discrimination. It also acknowledges its
obligation to reasonably accommodate employees. Notwithstanding that policy, the employer has
imposed a fitness standard that adversely affects women applicants in the traditionally male-
dominated field of wildland forest fighting. It has thereby failed to meet its obligations under
either the Human Rights Act, the collective agreement or its own employment equity policy.
Next, argues Mr. Curry, reasonable accommodation without undue hardship is possible in this
case. The importance of the duty to accommodate where adverse-effect discrimination occurs
appears in the Supreme Court of Canada decision in Syndicat de l'Enseignment de Champlain v.
Commission Scolaire Régionale de Chambly (1994), 94 C.L.L.C. ¶17,023 (S.C.C.) at page
16,252. The proposition that can be gleaned from that case and the Court's decision in O'Malley
is that there must be reasonable accommodation for employees adversely affected by a work
place standard if the essential aim of human rights legislation is to be fulfilled and further, that
the duty to accommodate is a fundamentally
[ p. 183 ]
important aspect of human rights legislation and an integral part of the right to equality in the
workplace. In the instant case, the employer has done nothing to accommodate Ms. Meiorin or
other female Initial Attack Crew applicants.
Counsel for the union then went on to discuss the relationship between bona fide occupational
requirements and the duty to accommodate. He noted the relationship was reviewed in Central
Alberta Dairy Pool, supra , which declined to follow an earlier Supreme Court of Canada
decision in Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561 (S.C.C.), that held a
bona fide occupational requirement defence applied in cases of adverse-effect discrimination.
Based on that jurisprudence, the employer is not entitled to raise the argument that the fitness
standard here is a bona fide occupational qualification or requirement which relieves it of its duty
to accommodate Ms. Meiorin or other female Initial Attack Crew applicants. An employer's
defence of a bona fide occupational requirement cannot be available in an adverse-effect
discrimination case.
Counsel for the union then suggested Arbitrator Ladner's decision in the Bouchard Grievance ,
supra , is not applicable in the instant dispute. The issue here, he argues, is whether the
employer, once the fitness test discriminated against women becoming Initial Attack Crew
members, sought to accommodate them. The employer's fitness test has a demonstrated adverse
effect on women in that it disproportionately disqualifies them from employment based on
gender-related differences in physiology. Further, it has not proven it would suffer undue
hardship by accommodating the grievor through altering the test or the cut score for women. The
test and issues here are completely separate from the issues that were before Arbitrator Ladner,
who in that case, was faced with the issue of whether the employer's fitness standards had a
reasonable relationship with the work to be performed.
Mr. Curry then addressed the issue of accommodation to the point of undue hardship. He urged
such accommodation is mandatory and once the union has proven the employer's work rule has a
discriminatory effect on the grievor, it has established a breach of the collective agreement;
subject to the employer's defence that reasonable accommodation is not possible without undue
hardship. In these circumstances, Central Alberta Dairy Pool, supra , established that the onus is
upon the employer to show that it has taken reasonable steps toward accommodation of the

employee to the extent of not causing undue hardship. There is no employer evidence before me,
he argues, of undue hardship. The fitness test
[ p. 184 ]
was not properly validated. Safety and productivity concerns arising out of the cut score are
highly speculative. Thus, the employer has failed to meet its burden of proving accommodation
to the point of undue hardship. There is no evidence that any of the factors outlined in Central
Alberta Dairy Pool, which should be considered where an employer is required to accommodate
to the point of undue hardship, were such that they would outweigh the obligation to provide Ms.
Meiorin with an equal employment opportunity.
As to the effect on other employees' morale, that was one of the factors considered in the Central
Alberta Dairy Pool case, supra. Mr. Hartwick testified the morale of the Initial Attack Crews
would be negatively affected if a different standard was created for female applicants. That
question was addressed by Mr. Justice Sopinka, writing for the Court in Central Okanagan
School District No. 23 v. Renaud (1992), 95 D.L.R. (4th) 577 (S.C.C.), where he observed that
more than a minor inconvenience must be shown before an employee's right to accommodation
can be defeated. The employer must show actual interference with the rights of other employees,
on a substantial, not trivial basis, which would result from the adoption of the accommodating
measures. Further, other employees' objections based on attitudes inconsistent with human rights
are an irrelevant consideration. Mr. Curry noted there was no evidence of low morale due to
Aboriginal Unit Crews being allowed to do the step test. The effect on male Initial Attack Crew
members' morale of a fitness test accommodation for women is irrelevant, or at most, of minor
importance.
Turning to the issue of safety, counsel for the union suggested the evidence of Dr. Wenger in that
regard amounted to no more than an assertion that if employees had to run out of a fire, they
would need that set level of aerobic fitness. However, Mr. Beugelan's evidence that in all his 20
years of fire-fighting experience he had never had occasion to run out of a fire and that he
considered it unsafe to run on a fire line, is further support for the view that the safety
consideration, insofar as it relates to a 50 VO 2 max aerobic standard, is not relevant. To
demonstrate accommodation to the point of undue hardship, the employer would have to prove
that putting Ms. Meiorin on Initial Attack Crew, when she could not run 2.5 km in 11 minutes,
constitutes an unacceptable safety risk to her and to other Initial Attack Crew members as well as
the general public. The employer did not and could not have proven that proposition. Counsel
then cited Woolverton v. B.C. Transit (1992), 19 C.H.R.R. D/200 (Humphreys), a decision of the
B.C. Human Rights Council as authority
[ p. 185 ]
for the proposition that a certain level of safety risk does not in and of itself amount to undue
hardship. That was a factor that was not considered either by the employer or the University of
Victoria team. Nor did they consider that experience makes an employee a safer worker. It is not
an undue hardship for the employer to accommodate aboriginal crew rehires, and it cannot be an
undue hardship to treat adversely affected women in a similar fashion.
Next, counsel for the union turned to possible ways the employer could accommodate the
adversely affected grievor short of undue hardship. It would not be inappropriate, he argued, to
change the 50 VO 2 max standard because it is set higher than is realistically or reasonably
related to the performance of wildland forest fire-fighting, and therefore, it cannot be a valid
safety requirement.
He then turned to the false negatives inherent in the margin of error on measuring aerobic
capacity from a running test. Dr. Wenger agreed the margin of error was from 5% to 10% which,
in effect, means that persons who run the test in 11 minutes have a VO 2 max range of anywhere
from 45 to 55. Ms. Meiorin is in that range and does her job productively and safely. The
employer cannot prove she was an unsafe or unproductive worker because she is a false negative.
A false negative is someone who can do the job but fails the fitness test. It cannot seriously be

argued that Ms. Meiorin could not do her job. Therefore, a reasonable accommodation which
would not result in any kind of hardship to the employer would be to allow women to continue
working if they fall within the margin of error.
Counsel then went on to discuss the process for establishing cut scores in 1992 and 1994 by the
University of Victoria group and suggested the evidence of Mr. Brown that the employer's
estimate of oxygen costs in the work simulations was faulty. I do not propose to discuss that
evidence in any detail.
Finally counsel challenged the evidence of Dr. Wenger and his reliance on the Jackson article
"Pre-Employment Physical Evaluation" as a reference in both the University of Victoria 1994
report and his report prepared for this hearing. Finally, on his primary arguments, counsel for the
union suggested that reasonable accommodations without imposing undue hardship on the
employer could include women receiving a pass on the test if they score within the margin of
error, that they should receive a better pre-season training program, that they should be allowed a
choice of other methods of indirectly proving their aerobic capacity, or that they be offered the
step test. He urged a lower VO 2 max
[ p. 186 ]
cut-off of 45.5 be established for all women applicants and the test standards be adjusted
accordingly.
Mr. Curry summarized his argument by observing that Ms. Meiorin consistently performed well
as an Initial Attack Crew member in the past. Her continuing high fitness level, as demonstrated
by her current employment duties in the physically demanding logging industry and by her
vigorous athletic recreational activities, is such that she is entirely capable of safe and proficient
performance in the initial attack duties no different from what she has performed in the past.
There is no evidence of any efforts on the employer's part to accommodate her; nor is there any
evidence of any undue hardship which such accommodation would cause it. On that basis, he
urges the grievance be upheld and that Ms. Meiorin be reinstated with payment of back wages,
because of the employer's failure to make any reasonable efforts to accommodate her.
I now turn to the arguments advanced by counsel for the employer.
Mr. Gall asserts first, that forest fire-fighting is physically demanding, difficult and dangerous
work. For this reason, only physically fit people are hired to do the work, both for their own
safety and the safety of others. The union says the 50 VO 2 max standard is not reasonably
necessary. However, he urges the issue has already been determined in the Bouchard case where
Arbitrator Ladner upheld the employer's right to impose the so-called smoke jumper physical
fitness test, which includes a 2.5-km run in 11 minutes or less. Further, the union did not
challenge the employer's expert evidence in that case which confirmed the reasonableness of the
physical fitness requirements it has imposed for forest fire-fighters.
Subsequent to the Bouchard case, counsel notes the aerobic fitness standard has been re-
examined by a team of experts from the University of Victoria who have confirmed the 50 VO 2
max standard is necessary for forest fire-fighters. While Mr. Brown had some doubts about the
methodology of the University of Victoria team, he himself is not an expert in this area. By his
own admission he has never examined the issue of what the physical fitness standard should be.
Nor has he read literature on the subject beyond the University of Victoria studies and Dr.
Wenger's report. Mr. Brown, however, readily conceded in his report that the 50 VO 2 max
standard may be accurate. Thus, his evidence does not cast any real doubt on the conclusion
reached in the Bouchard case, as confirmed by the University of Victoria team as well as studies
in other jurisdictions.
[ p. 187 ]
However, the union argues that women on average have less aerobic capacity than men, the 50
VO 2 max physical fitness standard discriminates against them. The employer submits the 50
VO 2 max physical fitness standard is not discriminatory. The standard has not been set at a level
which effectively excludes women. The evidence shows that 35% of the female applicants meet

the 50 VO 2 max standard. Thus, this is not a case where the standard has been set so high that it
constitutes direct discrimination against women.
Nor is it a case, he argues, of adverse-effect or indirect discrimination. All applicants, regardless
of sex, are tested against the standard. The fact that 35% of female applicants and between 65%-
70% of male applicants meet the 50 VO 2 max standard does not mean the standard has the
effect of discriminating against women, if, as has been proven, the standard and the test used to
measure the standard are reasonable and everyone is given an equal opportunity to take the test.
Counsel for the employer goes on to argue even if women on average have more difficulty
meeting a standard that automatically amounts to indirect discrimination, as argued by the union
and which the employer disputes, the fact that the standard and the test used to measure the
standard are reasonable constitutes an absolute defence. There can be no accommodation in this
situation because any such accommodation would necessarily involve a lowering of the standard,
which would create an unacceptable safety risk.
Counsel then turned to the University of Victoria 1922 report and argued it confirms the
instructions given to the team at the outset to ensure that any procedures recommended for
establishing "fitness for duty" are not "discriminatory against a person or class of persons in any
manner prohibited by the B.C. Human Rights Act or the Canadian Human Rights Act". In
determining bona fide occupational requirements, the University of Victoria group identified the
three key issues; identification of essential job components, determination of the capacities
required for safe, efficient and reliable performance of the essential job components and an
assessment of whether the individual has the appropriate capacities necessary for safe, efficient
and reliable performance. The team of experts who prepared that report kept in the forefront, the
two criteria that must always be considered. They are bona fide occupational requirements,
which must have an objective basis and they must be reasonable, so that varying or modifying
them would constitute hardship.
[ p. 188 ]
Thus, after a comprehensive study of the physical demands and requirements of the forest fire-
fighting job, the team concluded the appropriate aerobic physical fitness standard was 50 VO 2
max. That is the standard that initial attack forest fire-fighters have to meet to perform their job
in a safe and efficient manner.
Mr. Gall also disputes the union argument that the evidence of Dr. Wenger amounted to no more
than an assertion that if employees had to run out of a fire, they would need the set level of
aerobic fitness. He suggested that while Dr. Wenger did not say a forest fire-fighter might have
to run out of a fire, what he emphasized was that for a forest fire-fighter to work safely in
difficult circumstances, such as extreme heat or high altitude, or when tired or fatigued, he or she
would have to meet the 50 VO 2 max standard. He also notes it is significant, since the
introduction of the physical fitness requirements, W.C.B. costs have fallen dramatically.
Turning to the union argument that "the aerobic capacity of most women is less than that of most
men", counsel for the employer suggests the more accurate way to describe it, consistent with the
evidence, is that the average aerobic power of women is less than men. It follows then that some
women will have a higher capacity than some men. It is a function of genetics, training and body
fat according to the evidence of Dr. Wenger. Government statistics show 35% of female
applicants pass physical fitness tests as compared to 60%-70% of male applicants. Thus, at least
35% of female applicants are able to meet the aerobic standard of 50 VO 2 max. On average,
women will require more training than healthy men in the same age group of 20 to 30 years in
order to achieve the aerobic standard. However, he argues, because we are dealing with averages,
some men in this age group will require more training than some women.
As to the union's argument that Dr. Wenger's opinion about the ability of women to meet the 50
VO 2 max aerobic standard was not based on scientific studies or published papers, Mr. Gall
concedes that is correct. It was based on his extensive experience in observing male and female

athletics. However, it is important, he says, to note there are no studies or papers that dispute Dr.
Wenger's opinion.
As to the 1978 American College of Sports Medicine's position paper on the recommended
quantity and quality of exercise relied upon by the union, he suggests that first, the paper does
not say that most women cannot meet a 50 VO 2 max standard. Dr. Wenger testified the ranges
of improvement quoted in that paper are based on averages in that they track the average
improvements of
[ p. 189 ]
groups of individuals. According to his testimony, the improvements in individual cases can be
greater than 30% in a six- to twelve-month period and that average, as well as individual gains
and improvement, will increase over a longer period of time.
As to Mr. Brown's questioning of the methodology of the University of Victoria team
establishing the 50 VO 2 max standard, he notes Mr. Brown has done no studies on this matter
and can point to no studies that contradict the University of Victoria team's conclusion. Nor has
Mr. Brown read any of the literature on the setting of physical fitness standards for forest fire-
fighters. Had he been familiar with it, he would have been aware the conclusions of the
University of Victoria team are consistent with those of other leading experts in the field who
have examined the issue including Dr. Sharkey in the United States and Dr. Budd in Australia.
Mr. Gall then analyzed Mr. Brown's concerns about the University of Victoria studies including
issues of pacing, the method of measuring gas samples, estimates of oxygen costs, etc. However,
I do not find it necessary to review that argument further for reasons that will become clear later
on in this Award.
Counsel then turned to the matters raised by the union about the margin of error or variability of
a physical fitness test. If the variability or margin of error is 10%, for example, someone who
runs 2.5 km in 11 minutes will have a VO 2 max score within the range of 45 VO 2 max to 55
VO 2 max. If one accepts the argument of the union that women who come within the margin of
error should be passed, that would effectively make 45 VO 2 max the required standard for
women. However, if the woman does the 2.5-km run in a time which equates to 45 VO 2 max,
there is still a 10% variability factor. That means her actual score would be between 40 and 50
VO 2 max. Thus, at the top end of that woman's range, the required standard of 50 VO 2 max
would be met. However, her real score could be 10% lower or 40 VO 2 max. As Dr. Wenger
testified, that would create an unsafe situation and that is why the required standard cannot be
reduced by the variability factor or margin of error or any particular testing mechanism. He also
notes Dr. Wenger's testimony that the more times a test is taken, the less the variability factor or
margin of error. Further, counsel argues, no issue has been raised in this case about the physical
fitness test themselves being discriminatory. The same tests are given to everyone. There is no
bias in the tests. The variability that exists applies equally to everyone who takes it. The sex of
the person does not affect the variability.
[ p. 190 ]
Next counsel for the employer observes that Ms. Meiorin trained for the 2.5-km run both before
and during her employment and in particular, before the 1994 season and while she was working
in 1994. On no occasion in her training over the years was she ever able to do the 2.5-km run in
less than about 11 minutes 30 seconds. After being recalled to work in 1994, she attempted on
four occasions to pass the 2.5-km run but the closest she got was 11 minutes 8 seconds on a
course that was 40 metres short. Clearly, she was not able to meet the required VO 2 max
standard. Further, at no time until shortly before this hearing did she express any dissatisfaction
with the administration of the test. Her complaint to Mr. Beugelan was not about the
administration of the test, but that there should be a different standard for women. The fact of the
matter, he urges, is that she had four failed attempts with training and that proved she could not
pass the 2.5-km test, at least not at that time or without further training. That was so regardless of
how many times she tried it. She was given every opportunity to pass the physical fitness test,

more opportunities, in fact, than is required under the agreement negotiated between the union
and the employer, which was the subject matter of the decision of Mr. Ready in the Pilas and
Williams Grievance, supra . Given her consistent failure to do the 2.5-km run in 11 minutes or
less it cannot be said she came within the margin of error for the 2.5-km run. The variability
factor of margin of error is reduced the more times the run is attempted. Thus, it is clear from her
repeated attempts, including her training runs, that she could not meet the required 50 VO 2 max
standard. That is the reason, counsel suggests, as to why she is seeking to have the standard
reduced for women.
Mr. Gall then turned to an examination of the Human Rights Act and the law on discrimination in
Canada. He suggests this case raises a number of fundamental issues regarding the nature and
ambit of human rights protection in Canada, some for the first time.
He starts with the following premise. If the aerobic fitness standard set by the employer and the
physical fitness standard used to assess whether employees meet that standard together constitute
a reasonable method of evaluating the ability of forest fire-fighters to perform their duties safely
and efficiently, then the requirement that all forest fire-fighters take and pass the test cannot be
said to be discriminatory. To hold otherwise would be to distort the principles of human fights
protection which have developed in Canada.
[ p. 191 ]
He argues the union has failed to raise even a prima facie case of discrimination. That is because
the fitness standard is reasonably necessary given the nature of the job. It is applied equally to
men and women. Further, the physical fitness test is a reasonable measure of whether each
individual meets that standard. Secondly, and in the alternative, Mr. Gall argues that if the
standard is prima facie discriminatory, it is submitted that it is nonetheless reasonable and
justifiable as a Bona Fide Occupational Requirement ("BFOR"). Finally, and in the further
alternative, if a BFOR or analogous defence is unavailable, with the result that the government is
under a duty to accommodate women like Ms. Meiorin who are unable to attain the required
standard, then the accommodations requested by the union, all of which essentially come down
to reducing the physical fitness standard for women or assessing them through less accurate
testing procedures, would cause the government, its employees and the public at large undue
hardship. To reduce the fitness standard for women would result in persons with inadequate
fitness levels performing the physically demanding and dangerous work of forest fire-fighting
which would result in an unacceptable safety risk. If the fitness standard is reasonably necessary
for the safe and efficient performance of the work and the test reasonably measures whether each
individual's fitness level meets that standard, then it cannot be unlawful for the employer to set
that standard and employ that test, regardless of the physiological differences between men and
women which makes the standard somewhat more difficult, on average, for women to meet.
He then turns to the definition of discrimination as enunciated in Andrews v. Law Society of
British Columbia (1989), 56 D.L.R. (4th) 1 (S.C.C.), where the Supreme Court of Canada
defined discrimination, at page 18;
I would say then that discrimination may be described as distinction, whether intentional or
not but based on grounds relating to personal characteristics of the individual or group, which
has the effect of imposing burdens, obligations or disadvantages on such individual or group not
imposed upon others, or which withholds or limits access to opportunities, benefits and
advantages available to other members of society. Distinctions based on personal characteristics
attributed to an individual solely on the basis of association with a group will rarely escape the
charge of discrimination, while those based on an individual's merits and capacities will rarely be
so classed.
He argues the principles that emerge from that definition are that discrimination need not be
intentional -- it may be the unintended result of other actions. In order for discrimination to be
present
[ p. 192 ]

there must be a distinction drawn between individuals or groups on the basis of the personal
characteristics of the individual or group in question. Distinctions based on attributed group
characteristics (stereotypes) will nearly always be discriminatory. Distinctions based on the
actual merits and capacities of individuals will almost never be discriminatory. Consistent with
this definition of discrimination, the Supreme Court has recognized two main classes of
discrimination: direct and adverse-effect discrimination, see O'Malley, supra , at page 332.
Counsel for the employer says the aerobic fitness standard and the physical fitness test at issue
does not discriminate directly against women. The same aerobic standard is expected of
everyone without exception. Women are not excluded from taking the test used to measure
attainment of that standard. Nor are they subjected to tests or other requirements not imposed
upon men. Fully 35% of women taking the test meet the requisite standard and the question at
issue in this case is whether the particular standard chosen and the universal application of the
physical fitness test used to measure attainment of the standard constitutes adverse-effect
discrimination against women.
Mr. Gall cited the Supreme Court of Canada decision in Ontario Human Rights Commission v.
Borough of Etobicoke (1982), 132 D.L.R. (3d) 14 (S.C.C.), as support for the proposition that
where discrimination is direct in nature, an employer may nevertheless escape the charge of
unlawful discrimination by establishing that the discriminatory rule is a BFOR; e.g., mandatory
retirement at a fixed age, provided the rule is imposed honestly, in good faith and is reasonably
necessary to meet legitimate safety concerns, amongst others. If an employer is unable to
establish that the discriminatory rule in question is a BFOR, the rule is struck down in its
entirety. If, on the other hand, the rule is a BFOR, it is upheld in its universal application,
without exception.
Next, says counsel for the employer, while the matter is not entirely free from doubt, the current
thinking of the Supreme Court would appear to be, that in the case of adverse-effect
discrimination, the BFOR defence is inapplicable, citing McIntyre J. in O'Malley, supra , at page
333. He says the rationale for the distinction was explained by the Court in Central Alberta
Dairy Pool, supra , at page 434;
Where a rule discriminates on its face on a prohibited ground of discrimination, it follows that
it must rely for its justification on the validity of its application to all members of the group
affected by it. There can be no duty to accommodate individual members of that group within the
justificatory test because, as McIntyre J. pointed out, that would undermine the
[ p. 193 ]
rationale of the defence. Either it is valid to make a rule that generalizes about members of a
group or it is not. By their very nature rules that discriminate directly impose a burden on all
persons who fall within them. If they can be justified at all, they must be justified in their general
application. That is why the rule must be struck down if the employer fails to establish the
BFOQ. This is distinguishable from a rule that 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. In these situations the rule is upheld so that it will apply to everyone except persons
on whom it has a discriminatory impact, provided the employer can accommodate them without
undue hardship.
Counsel for the employer then argued that the "rigid bifurcation" of discrimination into the
categories of direct and indirect by the various decisions of our Supreme Court is open to
question. He suggested a review of the leading discrimination cases decided by the Court
demonstrates why the type of situation presented in the instant case has been, to date,
overlooked, and at the same time, how the underlying principles revealed in those decisions
should apply in this hitherto unexplored circumstance. He suggested we are still in the early days
of human rights law in Canada. It is only in the past 15 years that the Supreme Court has begun

the process of developing the interpretative principles to be used in coming to grips with human
rights issues. He suggests the development of that jurisprudence has not been entirely consistent
-- there have been disagreements amongst members of the Court regarding the proper principles
with resultant changes of course and direction over time.
Counsel then analyzed the Supreme Court's decision in Etobicoke, O'Malley, Bhinder, Brossard
(Ville) v. Quebec (Commission des droits de la personne) (1988), 53 D.L.R. (4th) 609 (S.C.C.),
and Saskatchewan (Human Rights Commission) v. Saskatoon (City) (1989), 65 D.L.R. (4th) 481
(S.C.C.) ( Saskatoon Fire-Fighters ).
Dealing with the Saskatoon Fire-Fighters case, he argues that like Etobicoke, supra , it was a
case dealing with a mandatory retirement policy for fire-fighters. Unlike Etobicoke, however, the
employer there was able to demonstrate to the Court's satisfaction that its mandatory retirement
policy was objectively necessary and thus, qualified as a BFOR. He suggests that crucial to the
Court's finding that the mandatory retirement policy was a BFOR, was the original tribunal's
finding of fact that individualized assessment of employees to determine their continued ability
to perform the work safely was not a practical alternative.
[ p. 194 ]
He noted the comments of Sopinka J. in that decision that if it is reasonably practicable to engage
in individual assessments, and the employer nonetheless fails to do so, opting instead to rely
upon group generalizations, then the employer will not be able to justify the rule incorporating
those generalizations as a BFOR. However, if an employer engages in individualized testing,
then the employer is not, in fact, engaging in discrimination of any sort.
Mr. Gall then turned to the Central Alberta Dairy Pool decision. That case dealt with adverse-
effect discrimination on the basis of religion where a specific employer rule was in effect that an
employee work Mondays, in circumstances where the employee's religion required him to
observe a holy day on the particular Monday in question. As in O'Malley , supra , the Court held
that such a rule, despite the fact that it was a rational business rule, had an adverse effect on the
complainant as a result of his religion. As a result it required the employer to accommodate the
complainant by giving him the necessary time off. That conclusion, he said, was reached despite
the fact the legislation in issue in Central Alberta Dairy Pool, unlike that in O'Malley , contained
a BFOR defence. The difference in the statutory language before the Court forced it to revisit the
O'Malley and Bhinder decisions in an attempt to clear up the confusion existing in the law as a
result of those previous decisions. The majority did so by overruling Bhinder and giving, what
Mr. Gall characterized as "a novel interpretation" to O'Malley. The majority in Central Alberta
Dairy Pool held, with respect to Bhinder, that it was not established that Mr. Bhinder's failure to
wear a hard hat affected his ability to perform his job or the safety of his co-workers or the
public and therefore, the rule requiring him to wear a hard hat was not a BFOR. The majority
found further, that given Bhinder was an adverse-effect discrimination case, the BFOR defence
was not, in any event, applicable. Mr. Gall suggests the Court was wrong in that finding. Instead
of determining whether the hard hat rule was a BFOR, the Court should have asked the question
whether the requirement to wear the hard hat was a rational business rule. If it was, but it
nevertheless had an adverse effect on the basis of religion and it should have been upheld
generally, then the Court ought to have dealt with the issue as to whether Mr. Bhinder could have
been accommodated short of undue hardship.
Counsel for the employer also suggests that the majority reasons in Central Alberta Dairy Pool
specifically affirmed the reasoning of the Court in Saskatoon Fire-Fighters, supra , that in
determining whether a rule is a BFOR, a key element is to
[ p. 195 ]
consider whether individualized assessments would have been a reasonable alternative to the
blanket rule in issue. If such individual testing was an available alternative, then the rule could
not qualify as a BFOR. Further, as already established in Saskatoon Fire-Fighters, the imposition
of individual assessments is not itself discriminatory.

Counsel for the employer then commented on the decisions of the Supreme Court of Canada in
Renaud, supra , and Large v. Stratford (City) (1995), 128 D.L.R (4th) 193 (S.C.C.). That latter
case was another one dealing with mandatory retirement of police officers. The policy was
upheld as a BFOR. The Court dealt with two issues. The first was the nature of the first branch of
the BFOR defence and how subjective good faith is to be proven. The second was whether the
objective component of the test for a BFOR incorporates a duty on the part of the employer to
accommodate individuals affected by the rule. The Court held that in the case of direct
discrimination where a BFOR is established, there is no duty to accommodate. However, the
judgment is noticeably silent with respect to what the situation might be in case of adverse-effect
discrimination.
From his analysis of those decisions Mr. Gall invites me to accept that the following principles
can be gleaned from an analysis of those cases. They are;
(a) The underlying purpose of human rights legislation is to prevent discrimination.
(b) Discrimination occurs where a prejudicial distinction is drawn between individuals or
groups on the basis of personal characteristics protected under the legislation.
(c) Discrimination may be unintentional. In all cases the real focus is on the effect of the
impugned act and whether it draws discriminatory distinctions.
(d) Distinctions based on characteristics attributed to individuals on their membership in a
group will nearly always be discriminatory, while distinctions based on the merits and capacities
of particular individuals will rarely, if ever, be discriminatory.
(e) As a result, there is a marked policy preference for individualized assessments, rather than
blanket group generalizations.
(f) Human rights legislation is not to be employed to eliminate the ability of employers to
impose and apply reasonably necessary workplace rules and policies.
[ p. 196 ]
(g) Where reasonably possible, the reasonable needs of employees arising from characteristics
protected by the legislation are to be accommodated, provided that it does not cause the
employer undue hardship to do so.
(h) The various tests and analytical structures created by the Court are but expressions of these
general principles -- in all cases the real questions, which care must be taken not to lose sight of,
are: does the employer's practice or rule have a discriminatory effect on persons on the basis of
protected characteristics? If it does, is there any reasonable alternative to that practice, either
generally, or in the circumstances of the individual affected employee?
Applying those principles to the case at hand, counsel argues there is no discrimination. The
physical fitness test is applied to everyone, without exception, allowing for individualized
assessments to be made in preference to the blanket application of a simplistic and stereotypical
assumption about the ability of women as a class, or anyone else for that matter, to perform the
difficult and dangerous job of fighting forest wildfires.
Mr. Gall concedes that as a result of physiological differences between men and women, on
average, men have a higher aerobic capacity than women. However, a significant percentage of
women who do take the test pass it and with proper training, most healthy women in the 20 to 30
age group can meet the required aerobic standard of 50 VO 2 max. That was not the case,
however, for Ms. Meiorin despite the many opportunities afforded to her to take the test and to
demonstrate her fitness level.
Based on the application of these facts to the principles developed in the human rights
jurisprudence by our Supreme Court, he suggests one is led necessarily to the conclusion that the
grievor has not, in any sense, suffered discrimination. She, along with all other prospective forest
fire-fighters, have been subjected to a test that was designed to, and in fact does, assess
individuals according to their individual abilities. He urges that where an employer actually
engages in such individualized assessments, as was done in this case, it cannot be said to be
acting in a discriminatory manner. Having done so, the employer has met the pronouncement of