Canadian Human Rights Act – No Discriminatory Practice, No Award

July 24, 2013

The Tribunal decided that the complainant established that there had been prima facie discrimination, but that the posting would create undue hardship on the employer. Despite this finding, it awarded the complainant damages and ordered that she be deployed to a country within her top three choices where there were appropriate medical facilities. It also ordered that the health guidelines for postings in Afghanistan be clarified to ensure they did not institute a blanket ban of all who have a chronic medical condition. These orders were made due to the Tribunal’s conclusion that CIDA had not met its “procedural duty” to accommodate the complainant.

The Canadian Human Rights Act, R.S.C., 1985, c. H-6 (CHRA) states:

15. (1) 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;

The Federal Court stated that as the Tribunal had determined that the posting would create undue hardship on the employer, the requirement that those posted to Afghanistan not have type 1 diabetes was a bona fide occupational requirement as referenced in section 15(1) of the CHRA. Since the legislation states that refusals based on a bona fide occupation requirement are not discriminatory, the Tribunal had no authority to award any remedy.

The Federal Court stated the following about the CHRA:

The CHRA does not impose on employers a broad duty to manage and promote the careers of those who are prevented from holding certain positions, or enjoying certain benefits, for entirely justifiable, legitimate, and defensible reasons, simply because they possess a certain characteristic. Rather, the focus of the CHRA is on the negative – it is on the limitation or the refusal, and the removal of those limitations and refusals that unjustifiably limit individuals possessing certain characteristics.

The Tribunal’s decision was quashed in its entirety and the complaint was dismissed.

Click here for a full copy of the Federal Court decision.

Update: On May 20, 2014, this decision was upheld by the Federal Court of Appeal.  A copy of that decision may be found here.

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