Canada (Attorney General) v. Thwaites

Simon Thwaites filed a complaint against the Canadian Armed Forces (CAF), alleging that it discriminated against him under the Canadian Human Rights Act (CHRA) by restricting his employment because of his HIV-positive status.

Thwaites enlisted in the CAF in 1980 and by 1986 had risen to the rank of master seaman, a position that primarily required him to be at sea on naval vessels. In March 1986 he tested positive for HIV and the CAF confirmed this. At this time, the CAF learned of Thwaites’ homosexuality, which his commanding officer viewed as sufficient reason for his release from CAF. In late 1987, Thwaites’ doctor sent several letters to the CAF medical authorities saying that Thwaites’ symptoms had progressed in a way that qualified him for an AZT drug treatment program. The CAF interpreted these letters to suggest that Thwaites’ condition had become “sumptomatic” and subsequently conducted a medical review in March, 1988. This review concluded Thwaites was unfit for service in places where ready access to medical facilities was unavailable, including the sea vessels his position typically required him to work on.

In May 1988, the regulations regarding HIV-positive members of the CAF were replaced by a medical directive stating that members of the CAF who had expressed HIV symptoms and required frequent access to medical services should be categorized as medically unfit to serve in the CAF. In August 1988, the CAF Career Medical Review Board (CMRB) ordered that Thwaites be honourably discharged, even though they recognized that he appeared healthy and was able to perform the stressful work required when at sea. Thwaites was given no notice or opportunity to make submissions at the review meeting, he appealed internally but was rejected.

Thwaites brought suit in the Human Right Tribunal (“the Tribunal”), which held that the CAF had discriminated against Thwaites in violation of section 7 of the CHRA due to Thwaites’ HIV-status and that it did not meet the requirements of a bona fide occupational requirement (BFOR) defense pursuant to the exemptions listed in section 15 of the CHRA.  A finding of a BFOR allows an employer to restrict the opportunities of an employee if the employer, in good faith, believes that such a restriction is “reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public.” The elements required to prove a BFOR were the central issues at the hearing for this case.

The Court upheld the Tribunal’s decision that a BFOR defense requires an employer to prove that the risk an employee assumes as a result of continued employment must be more than slight or negligible exceeds beyond an acceptable limit the risks that would normally occur for an employee in that type of work. This approach balances the disabled person’s interest in working with the need to protect that employee. It recognizes that some risk is inherent in all positions regardless of an employee’s disability and thus allows employees with disabilities to remain in their jobs unless there is a significant or substantial risk to health and safety.

The Court refrained from deciding whether or not individual assessment is required to establish a BFOR. Nonetheless, it held that the Tribunal correctly determined that the individual assessment undertaken by the CAF was inadequate to support the BFOR defence under a reasonably necessary standard. Further, the Court upheld the Tribunal’s decision that in order for a BFOR defense to be successful, employers must show that it could not accommodate the complainant without significant risk to the employee and others.  The Court noted that this approach is consistent with the human rights principles that favor equal opportunity for persons with disabilities. Since the CAF failed to do this, the Court found that the Tribunal correctly rejected the BFOR defense.

“The employer must also show that its practice or rule is not disproportionate in that there are no other means less prejudicial to the concerned group’s right to equal treatment than its general exclusion on the basis of the criterion employed.” (page 8, quoted from the Human Rights Tribunal)

“Significant risk can best be measured in the context of the particular job and then only in comparison with other risks posed by that workplace. In this way, other tolerable risks arising from the employment establish the threshold. If risks of comparable magnitude are acceptable in a particular work environment then risks posed by a person who is HIV positive cannot be considered significant…One must determine when risks are deemed significant and thus unacceptable by identifying the nature and quantum of other risks that are tolerated as acceptable in that particular work environment.” (page 10, quoted from the Human Rights Tribunal)

“The pendulum has swung such that a BFOR can rarely be established if the rule or practice makes generalizations about people solely on the basis of disability without regard to the particular circumstances of the specific class of individuals affected. Moreover, in order for there to be true individualization, a close assessment should be made of the individual in question since even persons with the same disability vary markedly in how they personally function and cope with their affliction or vary in the degree of impairment because of the different stages of their infirmity” (page 11, quoted from the Human Rights Tribunal)

“Since the Act is essentially concerned with the removal of discrimination, as opposed to punishing anti-social behaviour, it follows that the motives or intention of those who discriminate are not central to its concern. Rather, the Act is directed to redressing socially undesirable conditions quite apart from the reasons for their existence.” (page 14)