Canada ( Attorney General ) v. St. Thomas
A-389-91
Isaac C.J.
8/10/93
14 pp.
S. 28 application to review and set aside decision of Human Rights Tribunal Canadian Forces, in discharging respondent, engaged in discriminatory practice contrary to Canadian Human Rights Act, ss. 7(b), 10(a)-Respondent, member of Canadian Forces since 1973, found to be asthmatic following medical reports-In 1984, respondent's case referred to Career Medical Review Board recommending latter be discharged as unfit to perform duties of trade-Complaint filed with Canadian Human Rights Commission alleging discrimination on ground of disability-Commission found to have established prima facie case of discrimination-Tribunal finding risk to members of Canadian Forces potential rather than real, complaint by respondent substantiated-Tribunal wrong in concluding individual testing required to determine whether respondent fit to perform duties-Individual testing of respondent carried out herein before decision to discharge him-Canadian Forces' decision based on long and extensive medical history of respondent, including reports of individual testing to determine whether fit to perform duties as soldier-Record unequivocally contradicting suggestion by Tribunal Canadian Forces acted hastily and without consideration of individual circumstances of respondent-All medical experts concluding respondent unfit by reason of condition as bronchial asthmatic to perform duties of soldier-Tribunal committing error of law in reaching decision based on erroneous findings without regard to whole evidence-Canadian Forces having established freedom from asthma bona fide occupational requirement for service in Canadian Forces-Application allowed-Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 3, 7, 10, 15.