Gostlow v. Canada ( Armed Forces )
T-163-98
Lutfy J.
21/10/98
9 pp.
Judicial review of CHRC's dismissal of complaints-In 1990, 1991 applicant unsuccessful candidate for subsidized legal training through Military Legal Training Plan (MLTP)-In 1990 applicant Lieutenant-Commander, aged 40-Canadian Forces Administrative Order 9-62, s. 5 requiring applicant not normally be above rank of captain to be eligible for selection for training plan-S. 12 requiring officers above rank of captain accepted for training to voluntarily revert to rank of captain before training beginning-Applicant submitting s. 5 policy statement tending to promote discrimination against older, senior officers-Filing complaints with CHRC claiming denied legal training on basis of age, constituting discriminatory practice within meaning of Canadian Human Rights Act, s. 7; application process for MLTP violating s. 10 by tending to deprive individuals of certain age of employment opportunity to gain legal training-Applicant linking increasing average age of officers in comparison with promotion in rank-Commission holding policy of limiting applications for MLTP to officers of rank of captain consistent with operational requirements; evidence not supporting allegations of discrimination; MLTP selection policy not precluding legal training for officer able to complete five years of obligatory service before reaching compulsory retirement; applicants' ages, scores not indicating age consideration in 1991 selection process-Between 1975, 1991, 14 of 101 applicants for MLTP above rank of captain; only one officer at rank higher than captain selected-Applicant submitting statistics, in combination with correlation between increase in rank, age show selection policy constituting prima facie case of discrimination-Also submitting once he established prima facie case of discrimination, burden shifting to respondent to prove discriminatory policy bona fide occupational requirement-Inappropriate to impose evidentiary, procedural rules concerning complaint before Human Rights Tribunal on administrative, screening function of Commission, even where dismissing complaint as not warranted-To do so could restrict ability of Commission, investigators to consider fully individual complaints-Proceeding concerning allegation of adverse effect discrimination (i.e. employer for genuine business reasons adopting rule or standard appearing neutral on its face, applying equally to all employees, but having discriminatory effect upon prohibited ground on one employee or group of employees as imposing because of some special characteristic of employee or group, obligations, penalties or restrictive conditions not imposed on other members of work force)-More difficult to establish prima facie discrimination-No ground to interfere with Commission's findings-Where Commission's decision meeting requirements of procedural fairness, not omitting "obviously crucial evidence", not "clearly deficient", effect should be given to its "wide discretion", judicial intervention inappropriate-Application dismissed.