Irvine v. Canadian Armed Forces

Irvine v. Canadian Armed Forces

The Tribunal reaffirmed that while universality of service permits the CAF to require members be 'soldiers first', the CAF failed to meet its Meiorin obligation to apply the most accommodating individualized medical standard in assessing Mr. Irvine. The CAD Committee and Career Board applied a mechanical and inadequate assessment contrary to the September 1995 individualized guidelines; on the balance of probabilities the CAF did not establish a BFOR for the G4 classification and therefore discriminated under ss.7 and 10 of the CHRA.

Citation
2004 CHRT 9
Parties
Complainant: Raymond Irvine; Commission: Canadian Human Rights Commission; Respondent: Canadian Armed Forces
Court
Canadian Human Rights Tribunal
Jurisdiction
Canada
Judgment Date
12 February 2004
Procedural Posture
Human Rights Complaint Re Determination After Federal Court Remittal / Tribunal Re Determination Following Federal Court Remittal (judicial Review Decision May 27, 2003)
Outcome
Complaint upheld in part: Tribunal finds the Canadian Armed Forces discriminated against Raymond Irvine by applying medical standards and assigning employment limitations in a discriminatory, hasty and inadequate manner; CAF failed to establish a BFOR on balance of probabilities.
Legal Topics
Disability Discrimination, Bona Fide Occupational Requirement (bfor), Universality of Service, Duty to Accommodate, Medical Assessment Review, Meiorin Test
Source Language
English
Human Rights Law Employment Law Administrative Law Military Law Disability Discrimination Bona Fide Occupational Requirement (bfor) Universality of Service Duty to Accommodate +2 more

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Parties

Raymond Irvine

Complainant

Canadian Human Rights Commission

Commission

Canadian Armed Forces

Respondent

Procedural Posture

Human Rights Complaint Re Determination After Federal Court Remittal / Tribunal Re Determination Following Federal Court Remittal (judicial Review Decision May 27, 2003)

Legal Issues

  1. 1 Whether the CAF directly discriminated against Mr. Irvine on the basis of disability (s.7 and s.10 CHRA)
  2. 2 Whether the universality of service principle operates as a BFOR absolving the CAF of a duty to accommodate
  3. 3 Whether the CAF met the third (reasonable necessity/undue hardship) part of the Meiorin test and applied the most accommodating individualized assessment available

Ratio Decidendi

The Tribunal reaffirmed that while universality of service permits the CAF to require members be 'soldiers first', the CAF failed to meet its Meiorin obligation to apply the most accommodating individualized medical standard in assessing Mr. Irvine. The CAD Committee and Career Board applied a mechanical and inadequate assessment contrary to the September 1995 individualized guidelines; on the balance of probabilities the CAF did not establish a BFOR for the G4 classification and therefore discriminated under ss.7 and 10 of the CHRA.

Court Disposition

Complaint upheld in part: Tribunal finds the Canadian Armed Forces discriminated against Raymond Irvine by applying medical standards and assigning employment limitations in a discriminatory, hasty and inadequate manner; CAF failed to establish a BFOR on balance of probabilities.

Orders

  • Tribunal maintains original ruling and remedial framework as set out in the 2001 decision insofar as it remains applicable after re-determination
  • Complaint under s.7 and s.10 of the Canadian Human Rights Act is upheld; CAF's G4 categorization and resulting release are not justified as a BFOR