Mortland and VanRootselaar v. Peace Wapiti School Division No. 76, 2015 AHRC 9 (CanLII)

Date: 2015-04-29

Facts

“Ms. Charlotte Mortland and Mr. Bill VanRootselaar (the complainants) were school bus drivers employed by the respondent Peace Wapiti School Division No. 76 (the School Division, or Peace Wapiti). The complainants were mandatorily retired, pursuant to School Division policy, at the end of the school year in which each reached the age of 65.” The complainants argued that terminating driver hires at age 65 was age discrimination. Neither complainant had ever had an at fault collision as a driver (either while driving a bus or in their personal vehicle) and had continued to maintain their Class 2 license with an S-endorsement, and a Q-endorsement for buses equipped with air brakes. The loss of school bus driver employment was difficult for the complainants both in terms of financial hardship and for their emotional well-being. The School Division regularly advertises for spare drivers and sometimes has to shut down a school route if there is no driver available. The Peace Wapiti School Division appears to be the only school district that applies the mandatory age 65 retirement standard. The Catholic school board in the area, driving on the same roads, does not mandatorily retire bus drivers.

The School Division (the respondent) argued that an age of 65 or less was a requirement for bus drivers for the safe transport of children.

The Human Rights Tribunal of Alberta found in favour of the complainants that an absolute age 65 or less standard applied to mandatorily retire school bus drivers is not reasonably necessary for the safe transport of children. The Tribunal found that visual and cognitive assessments, along with on-road testing, would be a much more appropriate standard to use than a blanket age based restriction.

Respondent’s Human Factors Position

Dr. Donald W. Kline presented human factors evidence. Dr. Kline opined that driver age may be used as a proxy for predicting driver performance in lieu of adequate individual testing. In the absence of driver testing, Dr. Kline opined that age 65 is a reasonable age to select as appropriate means to mitigate the risk that may be present. Dr. Kline was unable to quantify the level of driver risk is for a school bus driver age 63, 65, or 67, only that studies have shown an increase in collision rates with increasing age. Dr. Kline was unable to explain why the School Division selected age 65 or what the School Division did to measure safety risk. Given the variability in individual performance, Dr. Kline agreed that using age as standard means some drivers who remain capable of performing safely will be excluded from being allowed to drive school buses.

In Dr. Kline’s opinion, driver testing has not yet been developed in validated and standardized form for assessing driver fitness. Until driver testing can reliably predict driver safety, Dr. Kline opined that driver age is an appropriate standard to use.

Complainants’ Human Factors Position

Dr. Charles T. Scialfa presented human factors evidence. Dr. Scialfa was one of the authors of a report that concluded “driving assessments should not be triggered by age alone”. Dr. Scialfa’s research into individualized driver testing has led him to conclude that testing costing about $200 per driver, in conjunction with the current requirements of the Alberta licencing and renewal system, would provide valuable information about the presence of risk factors in road safety. Dr. Scialfa opined that a person’s driving record would also provide another aspect of a driver’s performance and employers are already mandated to maintain a complete driver’s record. While the system would not be a fully predictive assurance, it would be a more appropriate measure of driver performance than a strictly aged based standard.

Dr. Scialfa opined that age alone is a very poor predictor of driving performance. Dr. Scialfa opined that there is no evidence that the complainants are less capable of safely transporting children. Dr. Scialfa cited the Canadian Council of Motor Transport Administrators (CCMTA) guidelines entitled Determining Driver Fitness in Canada. The CCMTA guidelines concluded that the functional declines associated with aging are unlikely to lead to unsafe declines in driving performance except in the case of extreme old age.

Dr. Scialfa questioned the studies cited by Dr. Kline (human factors expert for the Respondent) identifying increasing age as associated with increasing collision risk for several reasons. Dr. Scialfa found that the studies did not control for driver exposure to risk on a distance driven basis and do not show concern until ages much older than 65. Dr. Scialfa found that the studies do not address medical conditions as a factor and cited research that found medical condition, not age, many of which are associated with aging, that increase collision risk. Dr. Scialfa’s review of the literature found that studies do not reliably establish that age 65 is the age at which collision risk is increasing. Dr. Scialfa questioned why the School District’s concern was only with older drivers when the same statistical sources have shown that young drivers also have higher collision rates.

Tribunal’s Rationale

The Tribunal did not accept that age-based collision rates of the general population of drivers can be applied to the complainants as a basis for terminating their employment. School bus drivers perform a highly specialized function, are regularly evaluated, trained, and drive under consistent, routine conditions that is not typical of the general population. The Tribunal did not find that the evidence clearly established age 65 as the age in which collision risk increases beyond an acceptable threshold. The Tribunal agreed with Dr. Scialfa that one should not apply age-based research data obtained under laboratory conditions, often at the limits of functional performance, to school bus drivers simply because they are of the same age as the research age group. The Tribunal agreed that group means may not accurately reflect an individual school bus driver’s performance. The Tribunal cited the guidance from CCMTA which notes that healthy aging drivers are unlikely to exhibit unsafe driving behaviour, except in cases of extreme old age.

The Tribunal agreed with Dr. Scialfa that there are additional steps an employer can take, including more frequent medical exams, cognitive and visual assessments, and on road evaluations. Other options noted by the Tribunal include proactive training and equipment modifications such as additional mirrors and rear-view cameras. These alternatives would be more accommodating and more closely linked to safe transportation than a blanket age 65 restriction. The Tribunal found that the School Division did not claim that it would be an undue hardship to implement these alternatives.