Soldier First Policy for Armed Forces Upheld by Federal Court of Appeal

Canada (Attorney General) v. Robinson (1994), 21 C.H.R.R. D/113 (F.C.A.)

This is an appeal by the Attorney General of Canada from a decision of a Canadian Human Rights Tribunal which ruled that James Robinson was discriminated against by the Canadian Armed Forces when he was diagnosed as having "complex partial epilepsy." Because of his disability, the Tribunal found that he was refused continued employment as a Flight Engineer, not given the opportunity to transfer to another trade, and denied the position of Alcohol Counselor. The Tribunal also found that being "seizure-free" was not a bona fide occupational qualification for positions other than Flight Engineer for which Mr. Robinson was qualified.

Dealing with the preliminary issue, the Court finds that though the Tribunal dealt with matters not specifically set out in the complaint form, this does not amount to exceeding its jurisdiction. No evidence of prejudice flowing from consideration of these additional matters was adduced. The Court is satisfied that the issues were properly before the Tribunal.

The Court also finds that there was no duty to accommodate in this case, because there is no duty to accommodate in cases of direct discrimination. The Tribunal found that a Canadian Armed Forces "seizure-free" policy which required all members not to be prone to seizures constitutes direct discrimination.

The Court reviews decisions of the Supreme Court of Canada dealing with the test for a bona fide occupational qualification. It finds that the test set out in the Ontario (Human Rights Comm.) v. Etobicoke (Borough) (1982), 3 C.H.R.R. D/781 (S.C.C.) decision remains unchanged by subsequent Supreme Court of Canada decisions.

In this case the onus was on the Canadian Armed Forces to show that a blanket "seizure-free" policy is reasonably necessary, despite the fact that there are four different classifications of epilepsy each with a different risk of employee failure. The possibility of individual testing as a practical alternative to a discriminatory rule should be taken into account when determining whether the rule is reasonably necessary in the circumstances. In this case, the Tribunal must consider whether this is a case where a practical alternative is available considering that this rule applies to individuals who can be required to perform combat duty.

On the question of the "soldier first" policy, there is a split in the Court's decision. The Canadian Armed Forces argues in this case (and in others) that blanket rules requiring that members be free of specified disabilities are bona fide occupational requirements because any member of the Armed Forces, no matter what his or her trade or position, is a "soldier first" and can be required to engage in combat.

The Tribunal declined to apply the "soldier first" policy because it found that in a number of ways the Canadian Armed Forces contradicted this policy in its practice; by failing to demonstrate that persons in non-combat positions could be called on in a time of combat; and by granting medical waivers to members who would be in combat positions in time of war.

However, the majority of the Court finds that the obligation on members to engage in combat if required is imposed by the National Defence Act. The statute is binding and administrative practice cannot work a modification. Consequently, the majority upholds the right of the Canadian Armed Forces to base its policies regarding disability on a "soldier first" policy.

Robertson J.A., dissenting, upholds the Tribunal's ruling on this question. He finds that the National Defence Act is enabling legislation that allows the Canadian Armed Forces to impose "any lawful duty" on CAF members. It can adopt any policy to determine which lawful duties should be imposed. Further, he finds that the Canadian Armed Forces has not applied the "soldier first" policy consistently or it has applied it in a discriminatory manner. The policy is inconsistent with the actual practice of the Canadian Armed Forces.

In conclusion, the Court allows the appeal, sets aside the decision of the Tribunal and remits the matter back to the Tribunal for disposition in accordance with its reasons.

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