Bigmac said:
Quote from Human Rights Act para 15 sub para 9 under exemptions
Although this quote look good for the CF we adopted the regulations of Employment Equity Act in 2003 which means Human Rights Commission could relook into this exemption for the CF.
The CHRC, the federal courts and the federal appeals court have looked at this matter a number of times. One of the most recent examples is that of WO Irvine, who had close to 30 years of service by the time he was released. Starting in 2003 and going forward through to near the end of 2005, the CHRC and the courts including the appellate courts looked at his circumstances and found that the Universality of Service Principle was sustainable as a matter of law, but it does not necessarily oust the duty to accomodate an injured member or a member with a medical condition. The CAF must still look at the individual assessment while ensuring that any decision taken is not based on "
discriminatory, and arbitrary, hasty, imprudent or inadequate medical assessments." So, in these cases we have the courts upholding of the Universality of Service Principle as a bona fide occupational requirement, (whether or not a soldier is ever expected to serve in combat) which is now without question a completely valid principle and thus no longer open to legal challenge. On the other hand, any decision by the CAF to release must not be based on faulty or questionable medical assessments, and there is still a small open window of opportunity to accommodate for disability, but only where circumstances permit. I think this is a fair requirement, and I would surmise that the CDS has issued instructions that those factors be addressed prior to taking any decisions and that in so doing, his decision will survive any future challenges to the requirements set out in para 38 below.
- Don't get your hopes up. Most of the money goes to young people we recruit who are in worse shape on enrollment than you will be on release. Then they get some commie lawyer to sue because we 'broke' the poor young man.
It seems that the CDS has decided that current circumstances do not permit the CAF to afford further opportunities to accomodate permanently injured members or members of long standing who develop medical conditions. [IMO, a younger member (with a commie lawyer) with short service time suffering a medical condition
not resulting from a duty related injury or illness [in war or in peace] could be released without any serious prospect of mounting a succesful claim.]
See: http://www.canlii.org/ca/cas/chrt/2004/2004chrt9.html
Available at: http://www.canlii.org/ca/cas/chrt/2004/2004chrt9.html#999171
Upheld on further appeal by CAF to Federal Court of Appeal: Canada (Canadian Armed Forces) v. Irvine, 2005 FCA 432 (CanLII)
Available at: http://www.canlii.org/ca/cas/fca/2005/2005fca432.html]
Relevant portions:
[35] The duties of a soldier are universal in the sense that every member of the CAF must be able to perform them. .... The Court of Appeal held, at p. 238, that the Tribunal had erred in requiring such proof:
"...[T]he tribunal erred in the way it dealt with the applicant's argument. That argument was neither "hypothetical" nor "specious". The statute rendered Mr. Robinson liable for combat duty. It is an obligation well understood within the Armed Forces. Those serving in support roles are not exempt. Performance of the obligation depends neither on a "transfer" to a combat role nor on remustering. The Tribunal's view to the contrary led to the rejection of the applicant's argument and to the conclusion, erroneous in my view, that somehow the applicant was required to adduce additional evidence showing the number of non-combat personnel transferred to combat functions over a period of time. That view simply ignores that the obligation is one that is imposed by statute. Administrative practice cannot work a modification. The statute binds."
The Court of Appeal went on to hold that the CAF was not obliged to show that the complainant was likely to be deployed to a combat role.
[36]
I find that the CAF was entitled to require that every member of the CAF meet these principles of universality of service. This conclusion is underscored by the stated jurisprudence, the prior human rights jurisprudence of direct discrimination relevant to the actions of the CAF in 1995 and 1996, and the direction of Mr. Justice Noël. In other words, once the CAF established a BFOR in the context of combat duty, the CAF is exempted from its duty to accommodate Mr. Irvine in non-combat duties.
[37]
However, this finding does not end the inquiry into Mr. Irvine's case. While the CAF is entitled to require that every member be a "soldier first", it must still demonstrate, in accordance with Meiorin, that the standards that it has developed to assess universality of service allow for individual testing. I have already found, in my original decision, that the CAF has met the first two criteria of the Meiorin tests in that the 1979 Policies, the Bridging Policies and the September 1995 Guidelines were rationally connected to the CAF's goal of requiring that Mr. Irvine be able to safely and efficiently perform his duties as a soldier, and that these standards were adopted in good faith.
[38] The third portion of the Meiorin analysis requires that the impugned standards be reasonably necessary for the employer to accomplish its purpose; i.e. the safe and efficient performance of the job.
The CAF must establish that it cannot accommodate the complainant and others adversely affected by the standard without experiencing undue hardship. The CAF must ensure that the procedure, if any, to assess the issue of accommodation, addressed the possibility that it may discriminate unnecessarily on a prohibited ground. Second, the substantive content of either a more accommodating standard which was offered by the CAF, or alternatively the CAF's reasons for not offering any such standard must be assessed. As I have already found at paragraph 139 of the 2001 decision, the September 1995 guidelines, to the extent that they allowed for individual assessment, were reasonably necessary to accomplish the CAF's goal of ensuring that members meet universality of service. Thus they evidenced a more accommodating standard in assessing members suffering from CAD than the prior 1979 standards and bridging policies. Yet the CAF failed to use a more individualized accommodating standard, such as that found in the September 1995 guidelines, in assessing Mr. Irvine, (further elaborated upon below).
[43] Based upon the totality of the jurisprudence, and the statutory provisions of s. 7 and s. 10 of the Act, the Tribunal has jurisdiction to deal with discriminatory, and arbitrary, hasty, imprudent or inadequate medical assessments in the application of standards proffered as BFORs. To state otherwise, would be to undermine the entire purpose of human rights legislation.
For example, a respondent could establish that a standard constitutes a BFOR, and then despite discriminatory, hasty or deliberate misapplication of the standard to the complainant, justify the complainant's dismissal. In other words, the respondent would accomplish indirectly, what it is prohibited from doing directly.
[55] For all of the reasons cited I continue to find that the CAF adversely differentiated against Mr. Irvine during Mr. Irvine's employ, on the basis of his disability, in the stated identified policies governing Mr. Irvine as a member with coronary artery disease and in its medical assessments of his condition and in its assignments of employment limitations to him.
The CAF was entitled to require that Mr. Irvine meet universality of service principles: indeed each of its standards were based on the requirement that members be fit to be "soldiers first". However, the CAF failed to establish that it applied those very standards to him in a discriminatory free manner. It thus failed to establish on a balance of probabilities a BFOR with respect to either the section 7 or section 10 complaints."
