Federal Appeal


Human Rights Legislation


Once finding of undue hardship made, complaint should be dismissed

DISCRIMINATION

Complainant was employee of Canadian International Development Agency (CIDA) and she applied for postings in Afghanistan. Complainant had type 1 diabetes and was dependent on insulin. Complainant had two temporary assignments in Afghanistan but during second posting she had hypoglycemic incident that resulted in posting being curtailed against her wishes and her returning to Canada. Following incident, persons who were being posted to Afghanistan on temporary assignments were required to be assessed medically before being assigned to work there. Health Canada developed Afghanistan guidelines.

Complainant continued to apply for other postings in Afghanistan but she was not offered any other assignment. Complainant filed complaints of discrimination against CIDA and Health Canada. Tribunal found that applicant established prima facie case of discrimination against CIDA and Health Canada on basis of disability. Tribunal found that CIDA had not met procedural duty to accommodate complainant and had not provided bona fide justification for discriminatory practices. Tribunal found it would have caused CIDA undue hardship to accommodate complainant in Afghanistan. Tribunal awarded other monetary and systemic remedies. On application for judicial review, Federal Court Judge found that once finding of undue hardship had been made, complaint should have been dismissed as conduct would not then be discriminatory practice for purposes of Canadian Human Rights Act. Tribunal’s decision was set aside. Human Rights Commission appealed. Appeal dismissed. Based on provisions of Act, only reasonable or correct interpretation of applicable provisions was that once tribunal found that it would have imposed undue hardship on CIDA to accommodate needs of complainant in posting her to Afghanistan, complaint should have been dismissed. There was not separate procedural duty to accommodate under Act that could give rise to remedies if employer established it had satisfied all parts of test for determining whether prima facie discriminatory standard was bona fide occupational requirement. If employer established that

prima facie

discriminatory standard was bona fide occupational requirement then complaint should be dismissed.

Cruden and Canadian International Development Agency, Re

(May. 20, 2014, F.C.A., J.D. Denis Pelletier J.A., Eleanor R. Dawson J.A., and Wyman W. Webb J.A., File No. A-214-13) Decision at 228 A.C.W.S. (3d) 1092 was affirmed.  244 A.C.W.S. (3d) 172.

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