HUMAN RIGHTS |
Canada (Attorney General) v. Irvine
T-2280-01
2003 FCT 660, Noël J.
27/5/03
14 pp.
Judicial review of CHRT decision upholding complaint of respondent that Canadian Armed Forces (CAF) had adversely differentiated against him on basis of disability, coronary artery disease, contrary to Canadian Human Rights Act (CHRA), ss. 7, 10--CHRT held that CAF had failed to establish that its medical and fitness standards constituted bona fide occupational requirement (BFOR)--In March 1994, respondent Irvine suffered heart attack, underwent coronary bypass surgery--Respondent's permanent medical category then below minimum medical category for occupation in CAF--In April 1996, Career Board approved respondent's release as being disabled and unfit to perform duties in member's present trade or employment as aviation technician, not otherwise advantageously employable--In April 1997, respondent filed complaint with CHRC--In August 2000, while complaint treated by CHRT, respondent suffered second heart attack--In November 2001, CHRT found CAF had discriminated against respondent on basis of disability, coronary artery disease, and that discrimination could not be justified under CHRA, s. 15(1), (2) as medical standards did not constitute BFOR--Issues whether CHRT erred in law in finding CAF had duty to accommodate members to point of undue hardship, considering principle of universality of service; whether CHRT erred in law in making erroneous findings of fact in perverse, capricious manner without regard to evidence before it--Application allowed--Standard of review for general questions of law that of correctness; for findings of fact and application of law to findings, that of reasonableness--Members of the CAF subject to universality of service requirement under which members must at all times and under any circumstances perform any functions that they may be required to perform--Universality of service requirement confirmed as BFOR in Canada (Attorney General) v. St. Thomas (1993), 109 D.L.R. (4th) 671 (F.C.A.); Canada (Human Rights Commission) v. Canada (Armed Forces), [1994] 3 F.C. 188 (C.A.); Canada (Attorney General) v. Robinson, [1994] 3 F.C. 228 (C.A.)--CHRT failed to recognize existing case law of that period, confirming universality of service requirement as BFOR--At time of decisions concerning respondent's career in CAF, no duty to accommodate in cases of direct discrimination--Requirement for member of CAF to be fit to perform combat duty or be "soldier first" recognized as statutory obligation: Robinson-- This requirement recognized by Parliament in 1998 amendments to CHRA, with addition of s. 15(9)--CHRT committed reviewable error of law in not having considered, in its analysis and application of British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 (stating that to show standard reasonably necessary, must be demonstrated impossible to accommodate individual employees sharing characteristics of claimant without undue hardship), intention of Parliament and Court's interpretation of legislation establishing, implementing universality of service principle at time of decision in 1996--Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 7, 9 (as am. by S.C. 1998, c. 9, s. 12), 15(1) (as enacted idem, ss. 10, 15), (2) (as enacted idem, s. 10), (9) (as enacted idem).