It is well recognized that employers and regulators cannot discriminate on the basis of disability. Many employers and regulators even choose not to ask any questions about disabilities in the hiring or registration process for fear of appearing to discriminate on that basis.

However, regulators can consider the health status of applicants for registration where they relate to a bona fide requirement for practising the profession. Where the illness or other disability of the applicant prevents the applicant from performing an essential element of the profession, the regulator can refuse to register the applicant.

For most professions there are sufficient alternative ways of practising that most disabilities can be accommodated. For example, applicants with lack of mobility can perform functions that are cognitive rather than physical in nature. The reality for most professions is that the only disabilities of genuine concern are those related to ongoing or chronic impaired judgment (e.g., some mental illnesses such as bi-polar affective disorders, and substance abuse disorders).

The Ontario Divisional Court released a decision earlier this month that illustrated how an employer or regulator can successfully screen applicants with disabilities. While Baldasaro v. Ontario Human Rights Commission, 2006 CanLII 21046 (ON S.C.D.C.) dealt with a physical disability (reduced hearing in one ear) for an applicant for a firefighter’s position, the principles have a much broader application.

Mr. Baldasaro applied to be a firefighter with the city of Toronto. He had hearing loss in one ear. The city of Toronto had established physical requirements for the position based on the expected challenges of fighting fires. Those standards were national in scope and had been developed by an expert panel. One of those requirements related to hearing acuity in order to locate sounds when fighting a fire without light and to hear instructions in an emergency situation. While Mr. Baldasaro could pass the hearing test with his hearing aid, he could not do so when he was not wearing it.

Mr Baldasaro had numerous tests. His own audiologist confirmed the hearing loss but expressed the opinion that, with his hearing aid, it should not affect his ability to perform safely and effectively. The audiologist for the city reviewed the written materials, but did not examine Mr. Baldasaro. The audiologist for the city expressed the opinion that “due to the significant difference in hearing acuity between the applicant’s left and right ears, the applicant would not be able to locate the source of sound in a fire situation.  In addition, the applicant would have difficulty discriminating speech in a fire situation due to background noise. He therefore was of the opinion that the applicant could not achieve safe and effective hearing during firefighting, either with or without a hearing aid.”

The city declined to offer Mr. Baldasaro an individualized, simulated evaluation because “an evaluation in a firefighting simulation would cause undue hardship, both because a firefighting simulation would expose the applicant and others involved to danger and because the estimated cost was $17,400….”

Mr. Baldasaro complained to the Ontario Human Rights Commission. The Commission reviewed the documentation and conducted some further investigation, but declined to refer the matter to a hearing. Mr. Baldasaro sought judicial review in Divisional Court. The court dismissed the judicial review and upheld the decision of the Commission to take no further action. In doing so the court appeared to rely upon the following points:

·         It was important that the city performed an individualized assessment of Mr. Baldasaro. It did not reject his application simply because he had a “label” or “diagnosis” of hearing impairment. It considered whether his individual hearing impairment prevented him from fulfilling an essential occupational requirement.

·         The duty of accommodation is different for new applicants. Just because the city might retain an existing employee who developed hearing loss did not mean that it had to accept new applicants with hearing loss.

·         Clearly health and safety concerns are an appropriate basis for not accommodating a disability. However, those concerns need to be genuine and explainable to reviewing tribunals and courts.

·         Courts and tribunals will give some deference to regulators who conduct the above analysis and reach a defensible decision.

·         An expert review of paper information can, at least in some circumstances, be sufficient. Not every expert has to examine the individual.

·         Having written, published standards for occupational requirements supported by expert opinion and appropriate consultation helped the city in defending its decision.

·         Refusing the expensive and potentially unsafe firefighting simulation was accepted by the court.

For most professions, an essential occupational requirement is intact professional judgment. Regulators can ask applicants about any conditions that might impair that professional judgment. Where there is such a condition, the regulator should conduct an individualized assessment of the condition and evaluate whether it will likely affect the safe and effective practise of the profession. Where the regulator is considering refusing to register the applicant on this ground, it should consider obtaining an expert opinion from a specialist with knowledge of both the condition and the occupational requirements.

A copy of Baldasaro can be found at www.canlii.org/on/cas/onscdc/2006/2006onscdc14359.html.

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This newsletter is published by Steinecke Maciura LeBlanc, a law firm practising in the field of professional regulation. If you are not receiving a copy and would like one, please contact: Richard Steinecke, Steinecke Maciura LeBlanc, 401 Bay Street, Suite 2308, P.O. Box 23, Toronto, ON  M5H 2Y4, Telephone: 416-626-6897 Facsimile: 416-593-7867, E-Mail: rsteinecke@sml-law.com

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