Judgments

[1994] 3 .F.C. 228

A-664-91

Attorney General of Canada (Applicant)

v.

James Robinson and Canadian Human Rights Commission (Respondents)

Indexed as: Canada (Attorney General) v. Robinson (C.A.)

Court of Appeal, Mahoney, Stone and Robertson, JJ.A.—Ottawa, March 3 and May 24, 1994.

Armed forces — Epileptic soldier, flight engineer, classified as medically unfit to serve in any trade in Canadian Armed Forces because of physical disability — Blanket exclusion of epileptics bona fide occupational requirement for all trades in CAF — “Soldier first” policy — Soldiers liable for combat duty pursuant to National Defence Act — Fact soldiers in support positions less likely to be assigned to combat duty irrelevant.

Human Rights — Bona fide occupational requirement — Blanket exclusion of epileptics bona fide occupational requirement for all trades in Canadian Armed Forces — “Sufficient risk of employee failure” test applicable — Whether individual testing “practical alternative” to adoption of discriminatory rule where rule would extend to those liable to perform combat duty — No duty to accommodate in direct discrimination cases.

The respondent Robinson, a flight engineer who had served in the Armed Forces for 21 years, was diagnosed as having epilepsy. Although he then applied for the position, for which he was qualified, of Alcoholism Counsellor at the CAF’s Prairie Region Alcohol Rehabilitation Clinic, he was turned down and released from the Forces on the basis of its “seizure free” policy. This was an application to set aside the decision of the Canadian Human Rights Tribunal that the CAF had discriminated against the respondent on the basis of a disability. The respondent alleged that the CAF’s failure to consider the possibility of transferring him to another trade was a discriminatory practice prohibited by section 7 of the Canadian Human Rights Act.

Held, the application should be allowed.

The first preliminary objection, that the Tribunal had exceeded its jurisdiction, was without foundation. The fact that the Tribunal concluded that the CAF’s “seizure free” policy violated section 10 of the Canadian Human Rights Act whereas the complaint was based on section 7 of the Act was irrelevant. The second preliminary objection was that the Tribunal considered issues beyond those raised in the complainant’s form. It considered not only whether the respondent had been discriminated against in not receiving the position of Alcoholism Counsellor, but also whether the CAF’s failure to consider the possibility of transferring him to another trade was discriminatory. These two allegations were indistinguishable and the parties debated both before the Tribunal. Complaint forms are not criminal indictments. In the human rights context, there must be actual prejudice. No evidence of such prejudice was adduced herein.

Since there was no duty to accommodate in cases of direct discrimination and since the CAF’s “seizure free” policy was directly discriminatory, the CAF had no legal duty to accommodate the respondent by transferring him to another trade.

Per Stone J.A. (Mahoney J.A. concurring): The medical standard at issue was objectively justified, and therefore a bona fide occupational requirement, because of the requirement, based on section 33 of the National Defence Act, that all members of the regular force must engage in combat as and if called upon to do so or if the circumstances otherwise require. There could be no derogating from the statutorily imposed obligation that rested on Robinson as a member of the regular force rendering him “liable to perform any lawful duty.” The fact that members of the CAF in support positions were less likely to be called upon to perform combat duties was irrelevant.

With respect to the sufficiency of risk of employee failure, the test laid down by the Supreme Court of Canada in Ontario Human Rights Commission et al. v. Borough of Etobicoke was applicable. Therefore the application of a “substantial risk” standard by the Tribunal was an error of law. The possibility of individual testing as a “practical alternative” may be an appropriate factor to be considered in some circumstances. When the Tribunal hears this matter anew, since it was remitted to it, it must consider whether this was a case where a practical alternative to the discriminatory rule was available considering that the rule would extend to individuals who are liable to perform a combat duty.

Per Robertson J.A. (concurring in the result): The tripartite test set out and applied by the Tribunal indicated a basic misunderstanding of the relevant case law. The Tribunal reasoned that the CAF was required to prove that: (i) epileptics presented a sufficient risk of employee failure to warrant their general exclusion; (ii) it was impossible to individually assess the risk presented by each epileptic in the CAF; and (iii) the blanket exclusion of epileptics was not an excessive or disproportionate means of ensuring that persons in the CAF posed an acceptable risk of employee failure. (i) It erred in adopting the “substantial” standard to quantify the risk necessary to establish a BFOR. (ii) Further, the Tribunal’s assumption that individual assessment must be ordered if at all possible seemed to conflate the analysis of a BFOR’s validity with that which is demanded to ascertain whether a rule has been cast too broadly to be reasonably necessary. (iii) Finally, the Tribunal erred in conceiving proportionality as a separate test required to prove a BFOR.

The role of individual assessment and the so-called proportionality test in deciding whether an occupational requirement is a BFOR was considered. Once an employer has established that an occupational requirement is a BFOR, there is no duty to “individually assess” all employees affected by that policy. An employee’s individual characteristics or traits remain irrelevant until such time as it is shown that the occupational requirement is not a BFOR. However, the onus is on the employer to establish that individual testing is not a practical alternative to the adoption of an occupational requirement which is prima facie discriminatory. In this case, the onus was on the CAF to demonstrate that the blanket “seizure free” policy was reasonably necessary, despite the fact that there were four different classifications of epilepsy and that each posed a different risk of employee failure.

To determine whether an occupational requirement is a BFOR, it is necessary to ascertain the nature of the employment involved. In this case, the issue was whether all serving members of the Forces were soldiers first and foremost, liable for combat duty. The National Defence Act did not require all serving members to be capable of fulfilling combat-like roles. It merely stated that all serving members were liable to perform “any lawful duty”. This permitted the CAF to adopt any policy to determine which lawful duties may be imposed upon CAF members. The CAF even admitted that thousands of its members failed to meet the minimum medical standards yet were on active service under waivers. One of the distinguishing features of a valid “lawful” duty is the consistency of its application. However, the evidence was either that the CAF did not apply the “soldier first” policy consistently or that the policy was being applied in a discriminatory manner—although the respondent was released from the Forces on the grounds that he was “unfit” for military duties including combat, he was given a medical waiver for what the CAF classified as a combat position with the Primary Reserves. It was apparent that the “soldier first” policy was merely being invoked as a legal argument which is emphasized in some cases and glossed over in others.

With respect to the quantification of risk necessary to establish a BFOR, the Tribunal erred in law in applying the so-called “substantial” standard. The correct test to establish a BFOR, as laid down by the Supreme Court of Canada in Etobicoke, was whether there was a “sufficient risk of employee failure”.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 7, 10(a), 15(a).

Federal Court Act, R.S.C., 1985, c. F-7, s. 28 (as am. by S.C. 1990, c. 8, s. 8).

National Defence Act, R.S.C., 1985, c. N-5, ss. 33(1) (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 60, Sch. I, s. 15), 34(1) (as am. idem).

CASES JUDICIALLY CONSIDERED

APPLIED:

Canada (Attorney General) v. St. Thomas and Canadian Human Rights Commission (1993), 162 N.R. 228 (F.C.A.); Ontario Human Rights Commission et al. v. Borough of Etobicoke, [1982] 1 S.C.R. 202; (1982), 132 D.L.R. (3d) 14; 82 CLLC 17,005; 40 N.R. 159; Canada (Human Rights Commission) v. Canada (Armed Forces), [1994] 3 F.C. 188 (C.A.); Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd. et al., [1985] 2 S.C.R. 536; (1985), 52 O.R. (2d) 799; 23 D.L.R. (4th) 321; 17 Admin. L.R. 89; 9 C.C.E.L. 185; 7 C.H.R.R. D/3102; 64 N.R. 161; 12 O.A.C. 241; Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489; (1990), 111 A.R. 241; 72 D.L.R. (4th) 417; [1990] 6 W.W.R. 193; 76 Alta. L.R. (2d) 97; 12 C.H.R.R. D/417; 90 CLLC 17,025; 113 N.R. 161.

REFERRED TO:

Saskatchewan (Human Rights Commission) v. Saskatoon (City), [1989] 2 S.C.R. 1297; (1989), 65 D.L.R. (4th) 481; [1990] 1 W.W.R. 481; 81 Sask. R. 263; 11 C.H.R.R. D/204; 90 CLLC 17,001; 45 C.R.R. 363; Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279; (1988), 53 D.L.R. (4th) 609; 10 C.H.R.R. D/5515; 88 CLLC 17,031; Bhinder et al. v. Canadian National Railway Co. et al., [1985] 2 S.C.R. 561; (1985), 23 D.L.R. (4th) 481; 17 Admin. L.R. 111; 9 C.C.E.L. 135; 86 CLLC 17,003; 63 N.R. 185; Canadian Pacific Ltd. v. Canada (Canadian Human Rights Commission), [1988] 1 F.C. 209; (1987), 40 D.L.R. (4th) 586 (C.A.); Canada (Attorney General) v. Rosin, [1991] 1 F.C. 391; (1990), 34 C.C.E.L. 179; 91 CLLC 17,011 (C.A.); Galbraith v. Canada (Canadian Armed Forces) (1989), 10 C.H.R.R. D/6501; 89 CLLC 17,021 (Can. Trib.); Air Canada v. Carson, [1985] 1 F.C. 209; (1985), 18 D.L.R. (4th) 72; 6 C.H.R.R. D/2848; 57 N.R. 221 (C.A.).

APPLICATION FOR JUDICIAL REVIEW of a decision of a Canadian Human Rights Tribunal (Robinson v. Canada (Armed Forces) (1991), 15 C.H.R.R. D/95 (Can. Trib.)) that the Canadian Armed Forces had discriminated against the respondent Robinson on the basis of a disability when it released him after he had been diagnosed as having epilepsy. Application allowed.

COUNSEL:

Barbara A. McIsaac, Q.C. and Frederick Woyiwada for applicant.

Peter C. Engelmann and William F. Pentney for respondent Canadian Human Rights Commission.

No one appearing for respondent James Robinson.

SOLICITORS:

Deputy Attorney General of Canada for applicant.

General Counsel, Canadian Human Rights Commission, Ottawa, for respondent Canadian Human Rights Commission.

James Robinson, Belleville, Ontario, for respondent James Robinson.

The following are the reasons for judgment rendered in English by

Stone J.A.: I have had the advantage of reading in draft the reasons for judgment of my colleague Mr. Justice Robertson. He sets forth a chronology and other factual matters, which I accept. I am in agreement with the conclusion reached by my colleague and also with his treatment of the preliminary objection and duty to accommodate. I have difficulty, however, with his treatment of the policy of “soldier first”. This requires me to adopt a different approach to the question of individual testing in this case.

One of the arguments addressed to the Tribunal [(1991), 15 C.H.R.R. D/95] was that the medical standard at issue was objectively justified because of the requirement that all members of the regular force must engage in combat as and if called upon to do so or if circumstances otherwise require. The Tribunal addressed this argument at pages D/129-D/132 of its decision (Appeal Book, at pages 1449-1452). The argument is based upon a policy reflected in subsection 33(1) of the National Defence Act, R.S.C., 1985, c. N-5 [as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 60, Sch. I, s. 15], that a member of the regular force is “at all times liable to perform any lawful duty” and, further, that such member is liable to perform other services in the circumstances set forth in subsection 34(1) [as am. idem].[1]

It is true, as my colleague points out, that on November 1, 1985, Mr. Robinson was transferred to the Primary Reservists as an on-ground Sergeant Flight Engineer and that he received a medical waiver for this purpose. It is also clear, as the Tribunal found, that as a primary reservist Mr. Robinson could be called up automatically in the event of war. The Tribunal also found that many members of the Armed Forces continue to be such only because they were granted medical waivers.

That said, I do not see how the military obligations that bind members of the regular force by virtue of the statute can be over-ridden by the expedients of internal organization in the Armed Forces, whatever those may be at any particular time. Nor would it seem to matter that the Armed Forces may have ignored the raison d’être of its own medical standard by transferring Mr. Robinson to the Primary Reservists and thereby rendered him liable for active service in the event of war, or that others may have been allowed to remain in the Armed Forces on the strength of medial waivers. As I see it, there can be no derogating from the statutorily imposed obligation that rested on Mr. Robinson as a member of the regular force rendering him “liable to perform any lawful duty.”

The primary role of members of the regular force as expressed in the statute, was explained and illustrated by two of the witnesses who gave evidence at the hearing before the Tribunal—Commander Silvester and Captain MacKnie. Commander Silvester testified:

Q:  What is the primary role of the Canadian Armed Forces?

A:   To be prepared to do whatever the government wishes it to in cases of war.[2]

The evidence was clear that a member of the regular force must be able to engage in combat. As Captain MacKnie put it:

And when you put on the uniform, you are subject to two sets of law if you like, the code of service discipline and civil law. And you may be asked to do things you don’t particularly like to do or want to do, but because of your training and the obligation you’ve assumed, you do or you resign. But that’s the option.[3]

In his words, a member is required “to do any lawful duty in any location at any time.”[4]

Captain Silvester explained that he, for example, had no control over his own assignments. When asked how he had come to be assigned within the Armed Forces, he answered:

Well, part of the conditions of service are that one serves wherever and whenever required.[5]

Captain MacKnie testified to the same general effect:

Q.  Why is it that every member has to meet the requirement of the general specification of the ranks?

A.   It is the military tasks that everyone in the military is expected to do.

Q.  And why are they expected to exhibit those abilities?

A.   It’s part of the profession of being in the military.[6]

It is not in dispute that all members of the regular force do undergo basic training in the use of firearms. Nor do their trades exempt them from combat duties. Commander Silvester gave an illustration of a cook serving in an infantry regiment. Such a person must receive basic training in the use of weapons and is expected to fight if the need arises.[7] He also cited his own experience in combat situations at sea when his ship was in action, by explaining that:

… cooks … went to the magazines and loaded guns. And they also formed part of the first aid parties and firefighting teams, and then any number of other things they may have been required to do.[8]

There is no doubt a practical distinction between combat and non-combat or support roles in the Armed Forces. However, it does not follow from this that every member will inexorably engage in actual combat even though the duty to so engage is always present. The exigencies of the situation at hand no doubt dictate the need and obligation to so engage. Captain Silvester made this clear when testifying in response to questions put by a member of the Tribunal:

MR. PROULX: Maybe one question: I understand if I’m correct that there are two roles in the Canadian Forces, the combat roles and support roles; is that correct or is that precise?

THE DEPONENT: Not to call them roles. No. The roles are listed here, and the other ones that I talked about earlier as—we missed it here—under ‘Canadian Forces Roles’ in Tab 2 …. One can be in the position of either combat or support, based on one’s training and one’s military occupation. But ones does not preclude the other.

One can be primarily in a support trade, but still be in a combat position. And one can be in a combat position or combat trade primarily, but spend some time in the support role. So one is not necessarily always and forever in one or the other.

MR. PROULX: Is it clear cut division of roles or just—

THE DEPONENT: That’s difficult to answer, sir, but I would say, no. It’s not clear cut at all and that’s why it’s so difficult to answer. Although, it appears from the way a military occupation is described that it is one or the other. Anybody in the military is liable to perform a military or combat duty.[9]

And under cross-examination, he testified:

Q.  Well, let me ask you a question and give you an example, and if you don’t know just say so: People in the support roles, as you’ve called them would it be fair to say that their primary training would be in those areas?

A.   Primary training in what areas?

Q.  In the trades, as opposed to in military duties?

A.   That’s difficult to quantify. If I said yes, then I’m ignoring the fact that they—depending on where they are, they aren’t necessarily in the rear with the gear. They may well be forward deploy even though they’re in support roles. And in which case they would be trained competently as a combatant.[10]

With respect to one aspect—the requirement that all members undergo training in nuclear, biological or chemical defence,—Captain MacKnie testified:

Q.  Does training in that particular field of endeavour necessarily imply that you will ever be involved in nuclear, biological or chemical defence?

A.   No, it does not.

Q.  If none of those things imply that you won’t necessarily be involved in those activities, why do you do them?

A.   Because one never knows when one will be involved in such activities. Therefore it’s a matter of giving all individuals a minimum amount of training so that they can perform that if it’s necessary.[11]

It is a fair inference that all basic training is designed to serve the same general purpose.

In rejecting the applicant’s argument that the BFOR in question was reasonably necessary to ensure the efficient performance of the job without endangering Mr. Robinson, his fellow members of the Armed Forces and the general public, the Tribunal stated [at pages D/128-D/129]:

Considering the variation in risk between trades, the respondent has not succeeded in persuading the Tribunal that epileptics as a group pose a sufficiently higher safety hazard to warrant excluding them from all the trades carried on in the Forces. When it can be established scientifically that the risk that an epileptic who is controlled as the complainant is might have a seizure is from 3 to 6 percent and that he is also likely to be warned by an aura, it is hard to see how it could be concluded that there would be an unacceptable increase in risk for himself or for others in positions involving as little danger as those of aero frame or aero engine technicians. In our opinion, the complainant presents a negligible risk in the context of performing a ground support function. Thus, the respondent has not persuaded the Tribunal that the complainant constitutes a sufficient risk, within the meaning of the Etobicoke case, in performing such a function.

…

However, the respondent claims that, on the one hand, every member of the Forces is liable to be called upon for combat duty and that, on the other hand, he could have trouble getting his medication supplied on the battlefield. We feel that both of these arguments are hypothetical, indeed specious. The evidence has revealed that the possibility of a member being transferred from a support position to a combat position is implausible because combat requires special training, which is given specifically to members who have chosen to carry on specialized combat trades. Moreover, Captain MacKnie conceded that the occupational requirements known as the General Specifications Other Ranks (GSOR) concerning the skills required with respect to firearms, which are aimed at seeing to it that every member of the Forces can be called upon to go to combat, are not the subject of regular training. However, according to him, such training is necessary in order to retain these minimum qualifications. Both Sergeant Robinson and the officers who testified before the Tribunal confirmed that they had not been trained regularly for the purely military requirements necessary for the combat function. Captain MacKnie even admitted that he had not received such training for thirteen years. In other words, the respondent has failed to demonstrate that a member of the Forces assigned to a support function, in particular one as highly specialized as that of flight engineer or aviation technician, is likely to be “remustered” to a combat position. Nor was an attempt made to prove that such a possibility is practical. How many flight engineers or technicians specialized in military aircraft maintenance have been transferred to a combat function over, for example, the last ten years? Evidence to answer this question should have been given in order to demonstrate that the requirement of unlimited mobility is anything other than a hypothetical statement.[12]

I have difficulty with some specific aspects of these passages. While I agree that training of support personnel in the use of firearms on a regular basis was not always done, there can be no question that basic training in such use is required and indeed received by all members of the regular force. There was also evidence from Captain MacKnie—which was not controverted—that skill in the use of firearms is quickly reacquired given the basic training already received.[13]

This is not the first time that the policy of “soldier first” has been the subject of argument in this Court. In Canada (Attorney General) v. St. Thomas and Canadian Human Rights Commission (1993), 162 N.R. 228 (F.C.A.), a case involving the fitness of a member of the Armed Forces holding a particular trade to serve in the high Arctic, in the field both in Canada and in Europe and with peacekeeping units abroad, Chief Justice Isaac noted, at page 233:

In my view, examination of this issue must take account of a contextual element to which, the Tribunal did not give sufficient consideration. It is that we are here considering the case of soldier. As a member of the Canadian Forces, the respondent, St. Thomas, was first and foremost a soldier. As such he was expected to live and work under conditions unknown in civilian life and to be able to function, on short-notice, in conditions of extreme physical and emotional stress and in locations where medical facilities for the treatment of his condition might not be available or, if available, might not be adequate. This, it seems to me, is the context in which the conduct of the Canadian Forces in this case should be evaluated.

In my opinion, the 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 that is 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.

With respect to the sufficiency of risk, I wish only to suggest that the test laid down in Ontario Human Rights Commission et al. v. Borough of Etobicoke, [1982] 1 S.C.R. 202, though perhaps explained, has not been improved upon or otherwise modified by subsequent decisions. This indeed is illustrated from the passage taken by my colleague from the judgment of Chief Justice Isaac in Canada (Human Rights Commission) v. Canada (Armed Forces), [1994] 3 F.C. 188 (C.A.). The possibility of individual testing as a “practical alternative” to the adoption of a discriminatory rule in determining “reasonable necessity” may be an appropriate factor to be considered in some circumstances (Saskatchewan (Human Rights Commission) v. Saskatoon (City), [1989] 2 S.C.R. 1297, at pages 1313-1314). I should think that the Tribunal must consider whether this is a case where a practical alternative to the discriminatory rule is available considering that the rule would extend to individuals who are liable to perform a combat duty. (See Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279; Saskatchewan (Human Rights Commission), supra, and Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489.)

In the result, I would allow this application, set aside the decision of the Tribunal and remit the matter to the Tribunal for disposition in accordance with the reasons of my colleague and with these reasons to the extent that these reasons differ from those of my colleague.

Mahoney J.A.: I agree.

* * *

The following are the reasons for judgment rendered in English by

Robertson J.A.: This section 28 [Federal Court Act, R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 8)] application seeks to set aside a decision of the Canadian Human Rights Tribunal convened under the Canadian Human Rights Act, R.S.C., 1985, c. H-6, as amended (the Act). The Tribunal concluded that the Canadian Armed Forces (the CAF) had discriminated against the complainant, James Robinson, on the basis of a disability (reported at (1992), 15 C.H.R.R. D/95, cited to paragraph numbers). The complainant, a flight engineer, was released from the Forces after 21 years of service on the basis that he was unfit for military duties. He had been diagnosed with epilepsy.

While the complainant does not dispute his inability to serve as a flight engineer, he objects to being classified as medically unfit to serve in all other trades within the CAF. He alleges that the CAF’s failure to consider the possibility of transferring him to another trade is a discriminatory practice prohibited by section 7 of the Act.

The CAF has adopted a blanket policy which requires all members of the Forces to be free of seizure disorders (the “seizure free” policy). Those who fail to meet that requirement are released from the Forces. The CAF maintains that its “seizure free” policy is a bona fide occupational requirement (BFOR) for all trades within the meaning of paragraph 15(a) of the Act and that, therefore, the allegation of discrimination is without legal foundation.

I

(a)       Chronology

In 1963 the complainant joined the Royal Canadian Navy at the age of 18. He received training in a number of on-ground trades in the aviation field, including that of aero engine technician, aero frame technician and aviation technician. In 1974 he attained the position of flight engineer, which involves both on-ground and in-air duties. By 1976, he had achieved the rank of sergeant.

When the complainant began to manifest signs of a seizure disorder in December 1981, the CAF’s Career Medical Review Board (CMRB) temporarily prohibited him from flying. While grounded, the complainant, a recovering alcoholic, enroled in courses in alcoholism rehabilitation and began to volunteer at the Prairie Region Alcohol Rehabilitation Clinic at Canadian Forces Base Winnipeg (the ARC) in the Phase 3, or “after care” portion of the programme. The CMRB pronounced him fit to return to his flight engineer duties on August 11, 1982.

On May 24, 1983, the complainant suffered what he described as a “grand mal” epileptic seizure (he was later diagnosed as having “complex partial” epilepsy). The CAF responded by temporarily lowering his medical category and assigning him to light duties at CFB Winnipeg. The complainant again volunteered at the ARC eventually serving as the ARC’s ad hoc Phase 3 Coordinator. He also became involved in the Phase 2 portion of the programme (group therapy and clinical counselling) and applied for a four-year term position as a Phase 2 Alcoholism Counsellor. Although he was qualified for the position, his application was dismissed, ostensibly on the ground that no openings would be available over the next three years. On June 21, 1984, the CMRB determined that the complainant’s epilepsy gave it no choice but to release him from the Forces. Four days later, the Alcoholism Counsellor position was filled by an unqualified applicant.

Although the complainant’s release from the Forces took effect on January 14, 1985, his accumulated leave credits permitted him to retain his regular CAF membership until May 21, 1985. He was placed on the supplementary reserve list from May 21, 1985 until November 1, 1985, when the CMRB waived his medical requirements and employed him as an on-ground sergeant flight engineer in the primary reserves (Air). This enabled the complainant to take advantage of the federal Government’s Access Programme and thereby resume his position at the ARC as the Base Alcohol Coordinator until March 31, 1986. Beginning in June 1986, and as of the date of his Tribunal hearing, the complainant was a contract employee of the Department of National Defence as a civilian Drug and Alcoholism Counsellor at the Canadian Forces Clinic in CFB Lahr, Germany.

(b)       Medical Classifications and Waivers

The CAF’s medical classification system measures seven factors. Only three are relevant to this application: the geographic factor (G); the occupational factor (O); and the air factor (A). A member’s ability with reference to each factor is graded from 1 to 6 (7 in the case of the air factor) as determined through a medical exam. The higher the number, the more restrictions on a CAF member’s potential duties.

The minimum standard for all new recruits is G2 O2. Once in the CAF, a member may drop to G3 O3 without repercussion. Upon receiving a G6 or O6 classification, the member is automatically released. With respect to persons whose medical categorizations fall in the range between G3 O3 and mandatory exclusion, the CMRB exercises a discretion to recommend “a change in classification or trade, a change in environment or employment, or release.” The decision to “remuster” a member (transfer him or her to another trade) depends “on his entire file, including his performance in the trade he has to leave, his potential for promotion, his ability to carry out strictly military activities and the existence of openings in the desired trade.” (Tribunal’s reasons, paragraph 39, at pages D/104-D/105.)

As a result of his epileptic seizure, the complainant’s medical category was permanently lowered to G4 O3 A7. In the absence of the “seizure free” policy, the CMRB would have reviewed his file to determine whether he was qualified for another trade within the Forces. The CAF conceded that the complainant could have been easily remustered to one of his former on-ground trades. However, he would have required a medical waiver.

Medical waivers are generally available as “exceptional measures”. They balance the potential risk presented by a CAF member who falls below minimum acceptable medical standards against the Forces’ requirements in a specific trade. The Tribunal accepted CAF evidence that there are apparently “several thousand members who do not meet the minimum medical standards but are still on active service in the Forces because they have received waivers.” (Tribunal’s reasons, paragraph 37, at page D/104.) The possibility of a medical waiver in the complainant’s case was, however, pre-empted by the CAF’s “seizure free” policy, which was brought into effect on September 6, 1983. Prior to that date, the CMRB exercised a discretion to lower the medical standards of diagnosed epileptics depending on the particular circumstances of each case. The “seizure free” policy dictates that persons diagnosed with epilepsy be released from the Forces if a “remediable cause” is not found within six months. The complainant’s tenure with the Forces was terminated on that basis.

(c)        Epilepsy

The evidence accepted by the Tribunal discloses that epileptics are not a homogenous group. Neurological epileptic activity may be either localized or generalized; the physical symptoms of epilepsy vary widely. Persons with simple/partial epilepsy, for example, do not lose consciousness during a seizure and continue to communicate normally while exhibiting symptoms such as numbness and twitching of the hands. Others, such as persons with complex/partial epilepsy, experience seizures lasting between 30 and 45 seconds. They lose consciousness but do not have convulsions. The behaviour of persons who have generalized epileptic seizures (“petit” or “grand” mal) is different once again. During a “petit” mal seizure, which lasts approximately 15 to 30 seconds, a person loses consciousness and is unable to communicate. He or she, however, does not go into convulsions, which is symptomatic of a “grand” mal seizure.

The Tribunal accepted medical evidence that, while epilepsy cannot be cured, it can be controlled in 70 to 90 per cent of cases. The likelihood of controlling a person’s epileptic seizures was found to depend greatly upon individual circumstances. For example, the chances of controlling seizures of a person who has had one epileptic seizure are greater than those of controlling the seizures of a person who has had more than one. It was established that the complainant had a 16 per cent chance of having another seizure if he stopped taking medication. Once placed on medication, his risk of suffering another epileptic seizure dropped to between 3 and 6 per cent. The risk of a member of the general population having an epileptic seizure was found to be between 2 and 4 per cent.

II

The Tribunal identified three instances of prima facie discrimination contrary to section 7 of the Act. First, the CAF refused to retain the complainant as a flight engineer because of his disability. Second, it failed to consider the possibility of according him the “benefit” of a possible transfer to another trade for which he was otherwise qualified. Third, it refused to grant the complainant the position of Alcoholism Counsellor.

The Tribunal went on to delineate what it perceived as the legal requirements for BFORs. Reiterating the view adopted by McIntyre J. in Ontario Human Rights Commission et al. v. Borough of Etobicoke, [1982] 1 S.C.R. 202, at page 208, and by Beetz J. in Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279, at page 307, that the BFOR exception must be restrictively interpreted, it reasoned that the CAF was required to prove that: (i) epileptics present a sufficient risk of employee failure to warrant their general exclusion; (ii) it is impossible to individually assess the risk presented by each epileptic in the CAF; and (iii) the blanket exclusion of epileptics is not an excessive or disproportionate means of ensuring that persons in the CAF pose an acceptable risk of employee failure (see Tribunal’s reasons, paragraph 84, at pages D/118-D/119). It then commented on the significance of each criterion.

First, the Tribunal rejected the “minimal” or “real risk” standard promulgated in Bhinder et al. v. Canadian National Railway Co. et al., [1985] 2 S.C.R. 561, and adopted by this Court in Canadian Pacific Ltd. v. Canada (Canadian Human Rights Commission), [1988] 1 F.C. 209 (C.A.) [hereinafter referred to as “Mahon”]. Instead, it held that the CAF must demonstrate that epileptics present a “sufficiently higher” risk of employee failure than other members of the Forces (see Tribunal’s reasons, paragraph 98, at page D/123). Second, the Tribunal concluded that, under existing law, an employer must individually assess each employee’s capability to perform a job once that employee has become the subject of a prima facie discriminatory rule or practice (see Tribunal’s reasons, paragraph 100, at pages D/123-D/124). Third, the Tribunal declared that even if some epileptics present an unacceptable risk of employee failure, it was incumbent on the CAF to demonstrate that there were no means less drastic than the “seizure free” policy to achieve the ends of that policy (see Tribunal’s reasons, paragraph 103, at page D/125). Ultimately, the Tribunal concluded that the CAF’s “seizure free” policy is discriminatory within the meaning of paragraph 10(a) of the Act. At paragraph 128, at page D/132, it stated:

By establishing an inflexible mandatory classification that eliminated any discretion or individual assessment of members of the Forces diagnosed as epileptics, the “Seizure Disorders —Category Policy” (CFMO 26-12) constitutes a discriminatory policy within the meaning of s. 10(a) of the Canadian Human Rights Act. It cannot be a requirement reasonably necessary for the objective of the safe and efficient performance of all trades in the Canadian Armed Forces.

In my opinion, this application must succeed for several reasons. The tripartite test set out and applied by the Tribunal indicates a basic misunderstanding of the relevant jurisprudence. Although as of the date of the Tribunal’s decision it might have been open to this Court to affirm its adoption of the “substantial” standard to quantify the risk necessary to establish a BFOR, the recent decision of Canada (Human Rights Commission) v. Canada (Armed Forces), [1994] 3 F.C. 188 (C.A.) [hereinafter referred to as “Husband”], has laid that test to rest. Further, the Tribunal’s assumption that individual assessment must be ordered if at all possible seems to conflate the analysis of a BFOR’s validity with that which is demanded to ascertain whether a rule has been cast too broadly to be reasonably necessary. Finally, the Tribunal erred in conceiving proportionality as a separate test required to prove a BFOR. Since it is necessary to remit this case to the Tribunal, I must also canvass other issues raised before this Court.

(a)       Preliminary Objection

The CAF’s first objection to the Tribunal’s decision relates to jurisdiction. The CAF maintains that the Tribunal exceeded its jurisdiction once it went beyond the allegation of discrimination found within the complainant’s original and amended complaint forms. In those forms, the complainant alleged only that the CAF had violated section 7 of the Act by refusing to grant him the Alcoholism Counsellor’s position because of his epilepsy. Accordingly, the Tribunal was appointed with the mandate “to determine whether the action complained of constitutes a discriminatory practice on the ground of disability, in a matter related to employment under section 7 of the Canadian Human Rights Act.” (Application Record, Vol. V, at page 723.) That section reads:

7. It is a discriminatory practice, directly or indirectly,

(a) to refuse to employ or continue to employ any individual, or

(b) in the course of employment, to differentiate adversely in relation to an employee,

on a prohibited ground of discrimination.

The CAF now seizes on two facts. First, the Tribunal’s ultimate conclusion is restricted to a finding of a discriminatory policy under section 10 of the Act. Unlike section 7 of the Act, which contemplates situations in which a person has suffered the effects of a discriminatory practice, section 10 concerns the very existence of discriminatory practices and policies. Under that section, it is irrelevant whether a discriminatory practice or policy has actually had an adverse effect. Section 10 reads as follows:

10. It is a discriminatory practice for an employer, employee organization or organization of employers

(a) to establish or pursue a policy or practice, or

(b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment,

that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.

It is also claimed that the Tribunal exceeded its formal mandate by addressing whether the CAF’s failure to consider the possibility of remustering the complainant was discriminatory. In light of the fundamental nature of the preliminary objection, I will overlook the fact that it was raised for the first time in oral argument.

The Tribunal’s formal conclusion that the CAF’s “seizure free” policy constitutes a discriminatory practice within the meaning of section 10 of the Act is both unfortunate and unnecessary. The relevant question is whether the “seizure free” policy is prima facie discriminatory and, if so, whether it qualifies as a BFOR within the meaning of paragraph 15(a) of the Act. That provision reads:

15. It is not a discriminatory practice if

(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement;

It is conceded that the “seizure free” policy is prima facie discriminatory. If that policy is not found to be a BFOR, then it may violate either section 7 of the Act, section 10, or both. As the question of the remedies consequent to these conclusions has not been raised before us, it is sufficient to note that the Tribunal’s formal conclusion is really irrelevant in light of its substantive mandate.

Turning to the CAF’s second argument, it cannot be denied that the Tribunal patently considered issues beyond that raised in the complainant’s complaint forms. It considered not only whether he was discriminated against in not receiving the position of Alcoholism Counsellor, but also whether the CAF’s failure to consider the possibility of transferring him to another trade was discriminatory. In my view, these two allegations are, for practical purposes, indistinguishable. The CAF’s posting system requires that every member of the Forces must have a trade at all times. Therefore, it was impossible for the complainant to obtain the “speciality” position of Alcoholism Counsellor without being remustered. The CAF’s failure to consider the possibility of transferring the complainant to another trade eliminated his eligibility for the position of Alcoholism Counsellor. (It is open to query the Tribunal’s conclusion that the complainant would have received the “speciality” position but for the “seizure free” policy, particularly in light of the discretionary power held by the CMRB to grant medical waivers, the availability of a trade position and the complainant’s qualifications, medical or otherwise. This finding, however, was not challenged before us.)

More importantly, it is evident that the parties pursued the issue before the Tribunal in terms of whether the failure to consider the possibility of transfer to another trade constitutes discrimination. Complaint forms are not to be perused in the same manner as criminal indictments. In the human rights context, we must look for actual prejudice. No evidence of such was adduced before us. For these reasons, I am satisfied that the two discriminatory practices alleged under section 7 of the Act were properly before the Tribunal.

(b)       Duty to Accommodate

It is common ground that the complainant is unfit for the trade of flight engineer, regardless of whether the “seizure free” policy qualifies as a BFOR. During the course of oral argument, and before the Tribunal, the issue was raised whether the CAF is under a legal duty to accommodate him by transferring him to another trade.

Under current law, it is accepted that there is no duty to accommodate in cases of direct discrimination: see Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd. et al., [1985] 2 S.C.R. 536; and Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489. Only in cases of indirect or adverse effect discrimination does the duty to accommodate arise and even then that duty is subject to the caveat that accommodation must not impose an undue hardship on the employer. Directly discriminatory rules, if they are to be sustained at all, must apply to the entire group at which they are directed. Neither party has challenged the Tribunal’s finding that the “seizure free” policy is directly discriminatory. Accordingly, there can be no duty to accommodate per se. The only manner in which the complainant could have been granted an alternate position within the Forces is through the CAF’s self-imposed medical waiver system.

(c)        Individual Assessment and Proportionality

If a BFOR is, by definition, a standard of general application, then what is the role of individual assessment and the so-called proportionality test? In my view, the written and oral arguments before this Court indicate a fundamental misunderstanding of the basic tenets of the Supreme Court’s BFOR jurisprudence. In short, once an employer has established that an occupational requirement is a BFOR, there is no duty to “individually assess” all employees affected by that policy. An employee’s individual characteristics or traits remain irrelevant until such time as it is shown that the occupational requirement is not a BFOR. The law in this area is derived principally from four Supreme Court decisions. They are: Etobicoke, supra; Saskatchewan (Human Rights Commission) v. Saskatoon (City), [1989] 2 S.C.R. 1297 [hereinafter referred to as “Saskatoon Fire- Fighters”]; Brossard, supra; and Dairy Pool, supra.

In Etobicoke, McIntyre J. set out a bipartite test for BFORs. It will be recalled that, in that case, two fire fighters lodged a complaint under The Ontario Human Rights Code [R.S.O. 1970, c. 318] to protest their forced retirement at age 60 pursuant to a term of a government collective agreement. The tribunal had concluded that the refusal to continue to employ the complainants constituted a discriminatory practice which was not saved by the application of the BFOR provision of that Code. In upholding that decision, McIntyre J. defined BFORs as having subjective and objective components. The subjective branch of the test requires that the limitation be imposed in good faith and not for ulterior motives which could defeat the purpose of human rights legislation. The objective branch requires BFORs to be “reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public.” (Etobicoke, at page 208.) The question of whether an otherwise discriminatory rule is “reasonably necessary” and the role played by individual testing in that determination have engendered considerable controversy.

McIntyre J. clearly indicated that an employer is not required to individually assess employees excluded from employment by a valid BFOR. He acknowledged that some people below the age of 60 will be unfit to perform fire-fighting duties while there will be some who remain fit beyond their 60th birthday. At page 209, he recognized that an “arbitrary” retirement age may be justified where the risk of unpredictable human failure so warrants:

Faced with the uncertainty of the aging process an employer has, it seems to me, two alternatives. He may establish a retirement age at sixty-five or over, in which case he would escape the charge of discrimination on the basis of age under the Code. On the other hand, he may, in certain types of employment, particularly in those affecting public safety such as that of airline pilots, train and bus drivers, police and firemen, consider that the risk of unpredictable individual human failure involved in continuing all employees to age sixty-five may be such that an arbitrary retirement age may be justified for application to all employees.

In Etobicoke, the Supreme Court declined to interfere with the tribunal’s finding that fire-fighters over 60 do not present an unacceptable risk of employee failure. Of critical significance to that determination was the fact that the evidence before the tribunal supporting the contrary position was largely “impressionistic”. The Supreme Court held that, in the absence of convincing evidence demonstrating the relationship between the aging process and the safe and efficient performance of fire-fighting duties, a BFOR requiring persons over 60 to retire from fire-fighting could not be sustained. It is of particular significance that, in Etobicoke, individual assessment only became relevant in the context of the complainants’ possible reinstatement once it was found that the mandatory retirement provision was not a BFOR. Similarly, the risk of employee failure presented by the complainant in the case before us has no bearing on whether the “seizure free” policy qualifies as a BFOR. The law on this point was summarized in this Court by Linden J.A. in Canada (Attorney General) v. Rosin, [1991] 1 F.C. 391 (C.A.), at page 411 (see also Husband, supra):

The third criticism of the decision is that it took into account certain of Rosin’s individual characteristics in determining whether a BFOR had been established. It is true that, in cases of direct discrimination, the characteristics of any particular individual are not relevant. Either the provision applies to all persons in the group or to none of the individuals in it. The question in this direct discrimination case is not whether the individual in question can do the job, but whether a monocular parachutist can do the job.

Saskatoon Fire-Fighters, supra, also concerned an allegation of prima facie discrimination arising from a mandatory retirement provision in a collective agreement. In contrast to Etobicoke, the evidence adduced by the employer in support of the retirement provision was extensive and far from impressionistic. Once again, the principal issue before the Supreme Court was whether the employer was required to individually test employees over the age of 60 to determine whether they could safely and efficiently perform their offices. On this point, Sopinka J. opined, at pages 1313-1314:

In my opinion, these cases point the way to the proper approach with respect to individual testing. While it is not an absolute requirement that employees be individually tested, the employer may not satisfy the burden of proof of establishing the reasonableness of the requirement if he fails to deal satisfactorily with the question as to why it was not possible to deal with employees on an individual basis by, inter alia, individual testing. If there is a practical alternative to the adoption of a discriminatory rule, this may lead to a determination that the employer did not act reasonably in not adopting it. [Emphasis is mine.]

In short, the onus is on the employer to establish that individual testing is not a practical alternative to the adoption of an occupational requirement which is prima facie discriminatory. As McIntyre J. in Etobicoke observed, the extent to which the risk of unpredictable individual human failure is involved is a matter of critical significance. However, these apparently straightforward propositions have, to some, become obfuscated by the Supreme Court’s decision in Brossard. In that case, the Supreme Court considered whether the town of Brossard’s blanket anti-nepotism hiring policy was a BFOR. That policy disqualified all immediate family members of full-time employees and town councillors from employment with the town. As a result, the complainant was disqualified from summer employment with the town as a lifeguard because her mother worked as a typist in the municipal police station.

In evaluating the anti-nepotism policy, Beetz J., writing for the majority, determined that it was “disproportionately stringent in view of the aptitude or qualification which it seeks to verify.” (Brossard, at page 315.) He continued to state that the hiring policy was “like killing a fly with a sledge-hammer.” (Brossard, at page 315.) In a concurring judgment, Madam Justice Wilson observed that the blanket policy should not have been employed if “less drastic means” were available to protect the integrity and the appearance of the integrity of the town’s administration (Brossard, at page 344). In other words, a type of “individual assessment” was required in order to limit the application of the rule to persons whom it was reasonably intended to capture.

Both the Tribunal below and the Commission maintain that Brossard establishes a third and separate test for determining BFORs. They reason that the CAF must show that the blanket exclusion of epileptics is not a disproportionate means of ensuring that members of the Forces present an acceptable risk of employee failure. However, the Supreme Court’s reasoning in Brossard is simply a refinement of the objective branch of the Etobicoke BFOR test. This was affirmed by Madam Justice Wilson in Dairy Pool, supra, where she rationalized Brossard within the BFOR jurisprudence as follows (at page 518):

Although the language used in Brossard differs somewhat from the language used in the earlier [BFOR] cases, I do not believe it was intended to depart from the Court’s earlier jurisprudence on the application of a [BFOR] test to a case of direct discrimination ….

The second branch of the Brossard test addresses the availability of alternatives to the employer’s rule. In my opinion, this is not designed to be a discrete test for determining the existence of a [BFOR] but rather a factor that must be taken into account in determining whether the rule is “reasonably necessary” under the first branch.

In my view, the jurisprudence clearly demonstrates that the less homogenous a group of persons excluded by an occupational requirement, the more difficult it will be for an employer to establish a BFOR. The onus is on the employer to demonstrate, on a balance of probabilities, why a blanket policy of exclusion is reasonably necessary in circumstances where not all persons within the excluded group pose the same risk of unpredictable employee failure. In other words, the employer must establish that individual testing is not a practical or reasonable alternative in the circumstances. When the excluded group is a relatively homogenous one (i.e. all persons diagnosed with complex/partial epilepsy) then the issue is unlikely to dwell on whether individual testing is a reasonable alternative to the rule, but whether persons within this group present a sufficient risk of employee failure to warrant their exclusion through a BFOR. Thus, only employers who draft employment requirements in broad terms are properly called upon to adduce evidence necessary to contest a request for “individual assessment”.

The onus was on the CAF to demonstrate that the blanket “seizure free” policy is reasonably necessary, despite the fact that there are four different classifications of epilepsy and that each poses a different risk of employee failure. The Tribunal acknowledged that some controlled epileptics, and even some who are not on medication, do not pose a risk of employee failure greater than non-epileptics. This would suggest that the “seizure free” policy, which excludes all epileptics from the Forces without regard to their individual characteristics, is overly inclusive and cannot be sustained as a BFOR. Of course, if the CAF is correct and the “seizure free” policy is a BFOR for all trades within the Forces, then it may be upheld. This brings us to the applicability and significance of the so-called “soldier first” policy.

(d)       “Soldier First” Policy

To determine whether an occupational requirement is a BFOR, it is necessary to ascertain the nature of the employment involved. While this is in most cases self-evident, it is problematic where the employer is the CAF. There are two competing approaches as to how one should ascertain the nature of employment within the Forces. The CAF argues that all serving members of the Forces are soldiers first and foremost. This “soldier first” policy is premised upon the public’s reliance on the CAF as a defender and peacekeeper and reflects the CAF as it was meant to exist. Its application presumes that a wartime condition will arise and that all members of the Forces will be called upon in combat or crisis situations.

The “soldier first” policy is premised on subsections 33(1) and 34(1) [as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 60, Sch. I, s. 15] of the National Defence Act, R.S.C., 1985, c. N-5, which read:

33. (1) The regular force, all units and other elements thereof and all officers and non-commissioned members thereof are at all times liable to perform any lawful duty.

…

34. (1) Where the Governor in Council has declared that a disaster exists or is imminent that is, or is likely to be, so serious as to be of national concern, the regular force or any unit or other element thereof or any officer or non-commissioned member thereof is liable to perform those services in respect of the disaster, existing or imminent, as the Minister may authorize, and the performance of those services shall be deemed to be military duty.

The CAF maintains that these provisions render the complainant liable for combat duty and that the validity of the “soldier first” policy as a BFOR must be assessed with regard to the risk epileptics pose in combat environments. The alternative is to conduct the BFOR analysis acknowledging that there are many trades within the CAF which realistically do not involve combat-like duties. For example, the complainant at one stage argued that it was unlikely that he would ever be placed in a combat situation if transferred to one of his old trades or, for that matter, to the position of Alcoholism Counsellor. As a result of the diversity of occupations offered within the Forces, it is evident that if the “soldier first” policy is rejected, it is more difficult for the CAF to demonstrate that it is reasonably necessary to exclude all epileptics from the Forces.

The Tribunal declined to apply the “soldier first” policy on three grounds. First, it concluded that the CAF had failed to demonstrate that persons in non-combat trades would be called upon in combat situations (see Tribunal’s reasons, paragraph 117, at page D/129). Second, it found untenable the contradiction between the “soldier first” policy and the CAF’s decision to grant a medical waiver to the complainant in order that he be accepted as Primary Reservist. Primary Reservists, like regular CAF members, are called up automatically in the event of war. (Supplementary Reservists are called in the event of a conflict only if they are still qualified for a given function and if the CAF requires their services.) The Tribunal found no distinction between the military obligations of a member of the regular forces and a Reservist who is pressed into service (see Tribunal’s reasons, paragraph 22, at pages D/100-D/101 and paragraph 118, at pages D/129-D/130). Third, it assessed the risks occasioned by epileptics’ medical requirements in combat situations and found that the evidence did not support the CAF’s position that epileptics pose a sufficiently increased risk of employee failure over other members (see Tribunal’s reasons, paragraphs 119-120, at page D/130). (Query — even if one were to assume that the “soldier first” policy is applicable to all members of the Forces, would not the above finding of fact undermine the CAF’s argument that the “seizure free” policy constitutes a BFOR for all trades within the Forces? See also discussion of “Sufficiency of Risk” below.)

In my view, the Tribunal did not err in its ultimate conclusion on this point. The “soldier first” policy has never been fully rationalized by this Court. Outside the military context, the issue has been raised only once before the Supreme Court and then only in passing. In Saskatoon Fire-Fighters, the tribunal concluded that as a matter of fact the duties of the complainant, a fire prevention officer, included fighting fires. The Commission argued that the tribunal erred by failing to consider that the actual duties of a fire prevention officer were different than those of a fire-fighter. As a privative clause prevented the Court from reviewing the tribunal’s finding of fact, Sopinka J. merely observed, at page 1308:

While this contention is not devoid of merit, the Board found as a fact that the duties of the Chief Fire Prevention Officer included the strenuous task of fire fighting.

This Court has upheld the “soldier first” policy with respect to persons seeking entrance into the CAF; see Husband, supra. It is also the ground upon which persons who cannot perform a duty required by their trades are released from the Forces; see Canada (Attorney General) v. St. Thomas and Canadian Human Rights Commission (1993), 162 N.R. 228 (F.C.A.). We are now being asked to evaluate the applicability of the “soldier first” policy to CAF members who seek transfers to trades in which they would not realistically be required to take part in combat-like situations where they would present a “sufficient risk” of employee failure.

Contrary to the CAF’s allegations, the National Defence Act does not require all serving CAF members to be capable of fulfilling combat-like roles. Were it otherwise, there would be no need for either the “soldier first” or the “seizure free” policy: epileptic members of the Forces could be discharged simply on the basis of the National Defence Act. I hasten to add that such a requirement would effectively tie the hands of the Forces in respect of hiring and retaining, for example, specially qualified personnel (e.g. neurosurgeons) who may fail to meet the Forces’ minimum health standards.

The National Defence Act merely states that all serving members are liable to perform “any lawful duty”. This enabling legislation permits the CAF to adopt any policy to determine which lawful duties may be imposed upon CAF members. For example, pursuant to the National Defence Act, the CAF could have adopted a policy exempting persons between 45 and 55 years of age or over a certain rank from application of the “soldier first” policy. Instead, the CAF maintains that it has adopted the “soldier first” policy with respect to all serving CAF members.

While there is no question that the CAF has a right to determine who may be retained in the Forces and who must be released, I do not see that the CAF has established that the “soldier first” policy has been uniformly adopted and applied to serving CAF members. One of the distinguishing features of a valid “lawful” policy is the consistency of its application. The evidence before this Court is either that the CAF does not apply the “soldier first” policy consistently or that the policy is being applied in a discriminatory manner. Because the “soldier first” policy is not a statutory enactment, but rather a policy developed pursuant to enabling legislation, this finding does not attract the issue of estoppel.

It is manifest that the “soldier first” policy is inconsistent with the CAF’s actual practice with respect to serving members. The present case clearly illustrates this point. Although the complainant was released from the Forces on the grounds that he was “unfit” for military duties including combat, he was given a medical waiver for what the CAF classifies as a combat position within the Primary Reserves.

Recent jurisprudence supplies additional examples of this inconsistency. In Husband, the complainant was denied entrance into the CAF on the basis of an uncorrected visual acuity standard. That standard excluded persons who, without corrective eyewear, are legally blind. The CAF reasoned that legally blind persons are unfit for combat. However, the evidence also established that the CAF has a special visual category for legally blind serving members. Similarly, in Galbraith v. Canada (Canadian Armed Forces) (1989), 10 C.H.R.R. D/6501 (Can. Trib.), the complainant was denied admission into the CAF on the ground that he had had a bowel resection and therefore posed a sufficient risk of employee failure if placed in a combat-like environment. At the same time, the CAF acknowledged that it was willing to retain persons who have had bowel resections while serving in the Forces. These two cases suggest that the CAF is willing to, and does, offer a form of “accommodation” to employees whose health deteriorates as a result of the natural aging process.

The CAF has repeatedly justified the application of the “soldier first” policy to recruits; see the reasons of the Tribunal below and Galbraith, supra. However, I do not find that the rejection of that policy, as it applies to serving CAF members and in the circumstances of this case, in any way contradicts or undermines the provisions of its enabling legislation. It is apparent to me that the “soldier first” policy is merely being invoked as a legal argument which is emphasized in some cases and glossed over in others. Considering the potentially detrimental effects of this policy on serving members who have dedicated their careers to service in the CAF, I am not prepared to interfere with the Tribunal’s conclusion on this point. I turn now to the issue of the quantification of risk necessary to establish a BFOR.

(e)       Sufficiency of Risk

A BFOR will be found if there is a “sufficient risk of employee failure” to warrant the retention of an otherwise discriminatory employment qualification (Etobicoke, at page 210). The early jurisprudence held that a “minimal increase in risk” was sufficient to constitute a BFOR: Bhinder, supra; and Mahon, supra. That standard had been questioned by MacGuigan J.A. in Air Canada v. Carson, [1985] 1 F.C. 209 (C.A.), in obiter dictum by Madam Justice Wilson in Dairy Pool, and likewise in obiter by Linden J.A. in Canada (Attorney General) v. Rosin, [1991] 1 F.C. 391 (C.A.). However, in Husband the Chief Justice, writing for a majority (Robertson J.A. dissenting), found that the decisions of Bhinder and Mahon merely reaffirmed the Etobicoke test of “sufficiency of risk”. At page 213 of his reasons, the Chief Justice stated the extant law as follows:

I conclude by summarizing:

1. Neither Bhinder nor Mahon propounded any new test for determining “sufficient risk” in public safety cases;

2. The test applied in each case was that propounded in Etobicoke, which remains unchallenged and unimpaired;

3. Dairy Pool has not effectively overruled Bhinder or Mahon in so far as they can be said to have propounded a test for sufficient risk;

4. Dairy Pool has not laid down any new test of “substantial risk” in substitution for the test of “sufficient risk” propounded in Etobicoke.

In light of this development, the application of the so-called “substantial” standard constitutes an error of law. I feel compelled to point out that if the “soldier first” policy is accepted and applied, together with the “minimal” risk standard, then the CAF is effectively given carte blanche to release any disabled person from the Forces. To me it seems clear that virtually every person with any form of disability will present a “real” risk of employee failure in a combat situation. If it was the intention of Parliament to insulate the CAF from disability related complaints under section 7 of the Canadian Human Rights Act, then the alliance of these policies has certainly given effect to that intent. As a matter of law, it is a position which I cannot support.

III

For the above reasons, I would allow the application, set aside the decision of the Tribunal dated June 17, 1991 (rendered on July 4, 1991) and remit the matter to it for rehearing in a manner consistent with these reasons.

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