Disability
  
The alleged discriminatory impact of provisions in the Income Tax Act⁵⁷ that require a disability-related educational grant to be included in a person's taxable income was reviewed in Wignall v. National Revenue⁵⁸. The complainant was a part-time university student whose deafness required him to have sign language interpreters in the classroom. While the university provided him with such interpreters in the first instance, it also requested that he seek out other sources of funding that could help pay for the expenses incurred. He therefore applied for and received a Special Opportunities Grant for Students with Permanent Disabilities in the amount of $3,000 from the Government of Canada. He then gave this money to the university to help defray the costs of sign language interpretation. A T4A Supplementary was subsequently issued to the complainant informing him that the amount of the Special Opportunities Grant was to be included in his income for the tax year in which it was received. As the grant money was earmarked exclusively to pay for the extraordinary expenses associated with the complainant's disability, he felt its inclusion in his income for tax purposes was unfair and discriminatory.

In analysing the complaint, the Tribunal referred extensively to the interpretation given equality rights under section 15 of the Charter. The Tribunal relied on the three inquiries enunciated by the Supreme Court of Canada in Law v. Canada (Minister of Employment and Immigration)⁵⁹ was guided in its analysis by three broad inquiries identified by the Supreme Court of Canada. First, can it be said that an impugned law draws a formal distinction between a claimant and others on the basis of one or more personal characteristics, or fails to take into account a claimant's disadvantaged position in society resulting in substantively differential treatment? Second, is the claimant subject to differential treatment on a prohibited ground of discrimination. Finally, does the differential treatment impose a burden or withhold a benefit from a claimant in a manner that reflects a stereotypical application of presumed group or personal characteristics, or otherwise perpetuates or promotes a view that an individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect and consideration?⁶⁰ With respect to disabled people specifically, the Tribunal took note of the jurisprudence that recognized a long history of disadvantages, isolation and barriers to their participation in mainstream society.

The Tribunal noted that access to a Special Opportunities Grant was conditioned by both an evaluation of the personal finances of an applicant and the finite resources the government allotted to the program. There was no dispute that in the case of the complainant the inclusion of the Special Opportunities Grant in his income had resulted in no additional income tax payable. In point of fact, all income taxes withheld at source for the year in question had been returned to the complainant by means of an income tax rebate. The only identifiable repercussion was a small decrease ($25) in the amount of a provincial tax credit otherwise available to the complainant.

To assess the alleged discrimination, the Tribunal accepted the comparator group chosen by the complainant, i.e. all other students who receive grants and bursaries. The requirements of the Income Tax Act regarding the inclusion in income of all money received by way of grants or bursaries applied without exception to all students receiving them. The Tribunal was therefore unable to find that the relevant law or policy drew a formal distinction between the complainant and others on the basis of a personal characteristic. Turning to whether there was any substantively differential treatment based on a personal characteristic, the Tribunal found that the grant had not only been awarded on the basis of the complainant's disability "...but also because he was able to meet the means test of the Canada/Manitoba Student Loan program and because he agreed to use the funds to purchase services that would assist him in accommodating his disability in the classroom setting."⁶¹

However, did the policy to treat the grant to the complainant like any other bursary or scholarship fail to take into account the complainant's already disadvantaged position within society? On this issue, the Tribunal acknowledged that the creation of the Special Opportunities Grant was recognition by the government "...that students with disabilities were in need of special financial assistance to access education at the post-secondary level."⁶² Nevertheless, the refusal to exempt the grant from inclusion in income for purposes of taxation did not amount to a failure to recognize the complainant's already disadvantaged position. In so finding, the Tribunal emphasized that other provisions in the Income Tax Act provided additional assistance to disabled Canadians, such as the disability and medical expenses tax credit. The Tribunal also found that "[w]hile social policy is reflected in our taxation scheme, it is the lawmakers who determine the amount of financial assistance to be given to the disabled pursuant to these types of programs. Such assistance should not be dependant on the creation of an exemption from taxation by circuitous application of a discriminatory practice provision of the Canadian Human Rights Act....Those persons who are more financially capable may find themselves in the position of paying back part of the grant through taxation. However, based on the fact that a means test forms part of the criteria to obtain the grant in the first place, the effect of taxing the grant will almost always be minimal."⁶³

Although not strictly necessary to its decision, the Tribunal went on the consider the third broad inquiry that arises in cases of alleged discrimination. It concluded that the inclusion of the grant in income for purposes of taxation did not deny a benefit to the complainant in a way that reflects a stereotypical attitude towards the disabled and perpetuates a view that they are less able or equally deserving of concern, respect and consideration. It found that "the inclusion of the grant in income is consistent with the duties and obligations of all persons to pay a fair share of tax on income. The burden imposed on Mr. Wignall in this case was minimal. It was not an affront to his dignity as a human being to test his entitlement to the grant against the yardstick of total income from all other sources."⁶⁴

Failure to accommodate an employee suffering from anxiety and depression, and hastily releasing him as medically unfit to discharge his duties, were central to the Tribunal decision in Stevenson v. Canadian Security Intelligence Service. The complainant had worked for the RCMP Security Service and the Canadian Security Intelligence Service⁶⁵ (CSIS) for 26 years, rising to the position of Head of Internal Security for the BC Region. While occupying the later position the complainant came under suspicion of having leaked sensitive information, though he was subsequently exonerated of all wrongdoing following a voluntary polygraph test. This experience deeply shocked him and lead to increasing anxiety and depression, further exacerbated by an eventual lateral transfer out of internal security to human resources, a transfer he experienced as punishment related to the original allegations against him. Some time later he was informed by his Director General that he was being transferred from Vancouver to Ottawa. This later decision was taken without any prior consultations or discussions with the complainant. The prospect of transferring to Ottawa created yet more stress and strain, in particular within his family. As a result, his depression deepened even further.

The complainant took a number of steps to try delaying his transfer, though all requests made were to no avail, save for a change in the commencement date for reporting to his duties in Ottawa granted by his new supervisor. A month prior to assuming those duties the complainant obtained a medical certificate from his family physician that indicated he would have to be off work for a period of three months, during which time further evaluation and treatment would take place. This set in motion a series of events related to a formal health evaluation by a physician chosen by CSIS management. The initial report prepared by that physician described the anxiety disorder and depression suffered by the complainant and indicated that the further stress of being transferred to Ottawa would complicate his recovery. She took the view that following several months of therapy the complainant would probably be ready to re-integrate into his workplace in Vancouver. She felt that in time he would recover enough self-confidence to be able to undertake a transfer to Ottawa, although that would be subject to future evaluation (in approximately six months). Despite this assessment, management at CSIS remained determined that the transfer to Ottawa should proceed. It ultimately took the view that, as the complainant was then "unfit" to fulfil his duties, he should be discharged from the Service. He was therefore formally released on medical discharge, approximately six months after having obtained the medical certificate from his family physician regarding temporary leave due to illness.

In light of all the evidence, the Tribunal quickly concluded that a prima facie case of discrimination based on mental disability had been established. It pointed to the fact that within days of the complainant’s requested stress leave, "...the wheels were put in motion by his superiors to find a way to terminate his employment."⁶⁶ The Tribunal also found that the employer’s own written policies regarding the medical assessment of an employee had been ignored or improperly applied. These policies envisaged that an employee be assessed as either "Fit", "Unfit", or "Fit with Limitations". In the complainant’s case, the views of the medical examiner that he be allowed to remain in Vancouver for medical reasons so as to facilitate his recovery were simply ignored. In so doing, CSIS had failed to consider that the complainant could be assessed as falling within the category of "Fit with Limitations" set out in its own policies.⁶⁷

Having found a prima facie case, the Tribunal turned to the issue of whether a bona fide occupational requirement existed that could justify the health policies of CSIS. It first noted that these policies were vague and imprecise as to what standard should be applied to an employee whose ability to perform his or her duties was placed in question. The Tribunal accepted that some degree of mental and physical health was clearly necessary. It also accepted that the standard to which the complainant was put included a requirement of mobility. It summarized the key elements of the standard in the case before it as including: 1) capability to perform the duties expected, 2) prognosis for recovery, and 3) the requirement for mobility.⁶⁸

The Tribunal had no difficulty concluding that the first two elements of the test in Meiorin⁶⁹ were satisfied on the evidence presented, i.e. that the standard was adopted for a purpose rationally connected to the performance of the job; and that the standard was adopted in good faith. Turning to whether reasonable efforts to accommodate the complainant had been made, short of undue hardship, the Tribunal reiterated that CSIS management had remained adamant about the timing of the transfer to Ottawa despite its knowledge of the complainant’s severe anxiety and the course of psychotherapy he had undertaken. The Tribunal found it "...difficult to understand why his supervisors would not make an exception to the mobility requirement for an employee who had by this time provided 26 years of excellent service to the RCMP Security Service and to CSIS. The postponement of the transfer from June to September and the offer of temporary dual residence assistance hardly qualify as accommodation of Mr. Stevenson’s disability. The suggestion that medical resources were available to him and his family in Ottawa was gratuitous at best. It was no offer of accommodation at all."⁷⁰

The Tribunal also expressed serious concern about the apparent lack of good faith in the manner in which the complainant’s transfer was determined and in the way the health evaluation was subsequently carried out. The Tribunal also criticized the lack of clarity in policies regarding sick leave at CSIS, arguing that this in itself was enough to call into question the adequacy of standards applied to the issue of employee health. It therefore found that the policies themselves of CSIS did not adequately address the issue of accommodation in the context of health related disabilities.

The remedies ordered by the Tribunal included the payment of lost wages that would bring the complainant up to 30 years plus a day of service (with appropriate sums paid for benefits and a gross-up amount to compensate for income tax consequences of a lump sum payment), legal costs in the amount of $2,000 for advice sought prior to filing his complaint with the Commission, the maximum of $5,000 for hurt feelings (the amended maximum of $20,000 not being applicable to his case), as well as the maximum of $5,000 for the wilful and reckless nature of the discriminatory behaviour (the amended maximum of $20,000 also not being applicable). The Tribunal also indicated that had the amended maximum payments under the last two headings been applicable to the case a much higher award in both instances would have been ordered.

The discharge of an employee for medical reasons was again at issue in Irvine v. Canadian Armed Forces⁷¹. The case involved a 29 year veteran of the Canadian Armed Forces (CAF) who suffered a heart attack in March of 1994. Following this event he underwent heart bypass surgery and returned to work (as an aviation technician) after a short rehabilitation. While back on active duty he was monitored by medical personnel in the CAF. The medical follow-up consisted of physical examinations, counselling in risk factor control and prescription of medication designed to reduce cholesterol. Despite excelling in his position as aviation technician he was released from the CAF in July of 1995 on the grounds that he was not medically fit to serve. He subsequently filed a complaint with the Commission alleging that he had been discriminated against by reason of his disability.

The Tribunal reviewed in detail the various administrative procedures and health related policies of the CAF that applied to the complainant. First, the CAF uses a medical category system based on geographical and occupational factors that is designed to identify the minimum requirements needed to satisfy the principle of universality of service. The latter principle establishes that all members of the CAF are required to be able to perform at any time any lawful duty. This may include the duties of a soldiers regardless of their occupation. Both geographical and occupational factors are graded numerically with increasing magnitude. The higher the number, the greater is the degree of limitation on a member’s ability to meet his or her responsibilities as a member of the CAF. In the case of the complainant, the minimal classification for full employment was G3O3. Following his heart surgery he was never able to achieve greater than a G4O3 category. The G4 classification meant that he was precluded from "serving at sea or in an isolated location where physician service was not readily available" and thus not able to satisfy the principle of universality of service.

The process by which this classification of the complainant was arrived at involved a specialized medical board composed of medical specialists charged with the responsibility to review the medical file of a member who suffers from coronary heart disease (CAD). The CAD Committee makes recommendations regarding the medical category to be assigned. The standards it applies are, for the most part, now contained in September 1995 Guidelines that provide a detailed description of occupational categories and factors to be considered when determining health-related limitations on a member’s ability to fulfil his or her duties as a member of the CAF. The 1995 Guidelines supersede those that date from 1979 and provide for greater individualized assessments, as opposed to the more rigid categorization reflected in policies up to that point. For example, the 1979 policies had automatically assigned a medical category of G4O4 to any member who suffered from CAD.

The Tribunal also pointed out that general CAF fitness policies run in parallel to the more specific medical category procedures and policies. In practice the CAF uses an exercise prescription test known as EXPRES and requires that members score above the 20 percentile ranking when compared with the average non-military ranking of Canadians. A 20 percentile ranking means that 80% of the civilian population would have scored higher. The Tribunal also acknowledged that in "theory" the CAF used as well more stringent standards related to the ability of members to perform general military duties, though there was little evidence to establish how these standards were applied in reality. It pointed out that these standards were abolished following a 1999 review of policies, and added: "The review acknowledged that a serious weakness of the General Military Duties as a measure of individual capability was that many of the tasks were vaguely worded and failed to specify parameters (when, where, how) under which the duties of universality were to be performed, and where applicable, the individual level of capability or standard of performance necessary."⁷³

The Tribunal had little difficulty in determining that a prima facie case of discrimination had been made out, both as regards to the specific decision to release the complainant because of his disability, and the differential CAF procedures and standards that treated able-bodied members differently that those who suffered from CAD insofar as ability to perform military duties was concerned. In the case of able-bodied members, they could establish minimal fitness by taking the EXPRES test, whereas the complainant was denied this opportunity. The Tribunal then turned to the issue of whether the CAF had demonstrated that the standards and policies at issue constituted a bona fide occupational requirement.

The standards and policies that the CAF applied to the complainant were found to be rationally connected to the goal of ensuring that a member could safely and efficiently perform the tasks of his occupation and general military duties, and to have been adopted in good faith. However, these standards and policies must also be shown to be reasonably necessary to accomplish their purpose and that accommodation of the complainant short of undue hardship had been made. Here the Tribunal determined that the pre-1995 policies were excessively rigid in assigning a G4 category to members who suffered from CAD and provided for little or no individualized assessment. It pointed out that the 1995 Guidelines demonstrated the possibility of greater individualized assessment. Some of the factors these guidelines established had not been applied to the complainant’s situation, "...such as testing to determine Mr. Irvine’s functional capacity, the frequency and level of medical care needed to appropriately manage Mr. Irvine’s disease; and the employability-limiting side effects of any cardiac medications being taken."⁷⁴ Moreover, the assessment of the complainant’s case had "...failed to consider Mr. Irvine’s physical, occupational and emotional strengths vis-à-vis his ability to serve in the CAF."⁷⁵

The Tribunal also found that the refusal to retain the complainant in the CAF by appropriate accommodation of his illness contrasted sharply with what the decision would have been under retention rules introduced in November of 2000. As the Tribunal explained: "Members are now to be retained as long as they can be fully employed in a position established for their rank and military occupation. Mr Irvine fell into such a category. His commanding officers confirmed that he could fulfill the general and specific tasks of an aviation technician for his rank. Under the November 2000 policies, even members who cannot deploy to high-risk theatres of operation will be retained or re-assigned to another position established for his military occupation for which he can fulfill all normal duties. Also, members may be employed in positions where they are not directly exposed to any of the tasks or working conditions contemplated by U/S [universal service] principles."⁷⁶ The Tribunal also found that "the CAF itself recognized...that it had some empirical capacity to accommodate members in Military Non-Essential positions...[T]he duty of accommodation requires an assessment of the ability of the CAF to retain members in such positions prior to termination. No such assessment was made in Mr. Irvine’s case."⁷⁷

With respect to remedy (which the Tribunal suggested should recognize that the complainant would normally have served until his retirement in 2003), the Tribunal declined to issue any order at the request of the parties. However, it retained jurisdiction to hear evidence on the matter in the event the parties were unable to reach an agreement.

A refusal to employ allegedly based on perceptions that an individual was dependant upon alcohol was reviewed by the Tribunal in Crouse v. Canadian Steamship Lines⁷⁸. The case involved a complainant whose work history aboard a number of vessels was mixed, though numerous incidents of unsatisfactory work performance were noted in the evidence as well as examples of drunkenness in the course of employment. The respondent company, Canadian Steamship Lines, made a decision (following accusations of drunkenness on the job and incompetence) not to consider the complainant for any future employment. A number of years later, the complainant applied for the position of permanent relief electrician with the respondent company after noticing the position posted in the union hiring hall. Very soon thereafter, union personnel at the hiring hall were informed by letter that due to the complainant's past work history Canadian Steamship Lines had refused his application.

As a point of departure, the Tribunal observed that addiction to alcohol is considered a disability within the meaning of the CHRA. Moreover, whether such an addiction actually exists is not necessary to a finding of discrimination, the Tribunal emphasizing that employment decisions made due to a perception that an individual suffers from such a disability may constitute a violation of the Act⁷⁹. In the case at hand, the Tribunal found a prima facie case of discrimination had been made out, in particular because the respondent claimed that its hiring decision had been made by reference to the past work history of the complainant. Documents related to that work history and used by the respondent company included references to misconduct relating to abuse of alcohol by the complainant and to intoxication. Having found a prima facie case, the burden then shifted to the respondent to provide a reasonable explanation for its hiring decision.

With respect to the respondent's position, the Tribunal noted that it was not attempting to establish that freedom from alcohol dependance was a bona fide occupational requirement due to considerations of safety. Rather, the respondent claimed that its hiring decision had been motivated by concerns about the competence of the complainant to perform adequately the duties of the position. Considerable evidence had been heard by the Tribunal regarding the skills and experience required of those hired as permanent relief electricians aboard ships known as self-unloaders. It found, as a question of fact, that the respondent had made its decision not to hire the complainant due to concerns that he did not possess sufficient skill and experience. Any concerns the respondent may have had in the past regarding the complainant's abuse of alcohol had been resolved, as was demonstrated by the fact that the complainant had been hired on a temporary basis by the respondent in the recent past. In light of these findings, the Tribunal concluded that the respondent had discharged its onus to provide a reasonable explanation for the decision not to hire.

Policies of Correctional Service Canada (CSC) denying pre-operative transsexual inmates access to sex reassignment surgery were reviewed by the Tribunal in Kavanagh v. A.G. Canada⁸⁰. The case also involved decisions made by CSC to restrict initially the complainant's access to hormone therapy and to place the complainant in male penitentiaries. These policies and decisions of CSC were challenged by the complainant on the basis that they discriminated against her on the basis of sex and disability. Although the case was considered under both sex and disability discrimination, it is included here due to its relationship to an underlying medical condition known as Gender Identity Disorder.

Synthia Kavanagh had been taking female hormones since the age of thirteen. Her sense of herself being a female inhabiting a man's body began in early childhood. At the time of her trial and conviction for second degree murder (1989), she had been living as a female and been selected by a gender identity clinic as a candidate for sex reassignment surgery. In passing sentence, the presiding judge recommended that she be allowed to serve her sentence in a female jail. Despite the recommendation (which reflected the inmate's own desires), she spent the next eleven years in several high and medium security male penitentiaries. As mentioned, the complainant underwent sex-reassignment surgery following a settlement of her individual complaints against CSC. This left for the consideration of the Tribunal the formal policies of CSC as they pertain to prisoner access to such surgery and the selection of the institution within which a prisoner's sentence will be served. (The issue of access to hormone therapy had been resolved by the adoption of a written policy setting out the conditions under which such access would be allowed.)

Extensive evidence from expert witnesses was heard by the Tribunal regarding Gender Identity Disorder, a syndrome that is recognized in the medical community. It is broadly defined and includes behaviour ranging from a desire to imitate the opposite sex by, for example, cross-dressing, to the more dramatic cases of individuals who perceive themselves as actually being a member of the opposite sex. In such cases, the anatomical sex of an individual is at odds with his/her core gender identity. It is this intense conflict between the core gender identity and the clear anatomical sex of an individual that produces Gender Dysphoria. The latter term refers to the distress and torment felt by transsexuals who are unhappy with their biological sex.

Expert witnesses also reviewed the procedures for proper diagnosis of Gender Identity Disorder and the various treatments that are available, which include psychotherapy, drug treatment, hormone therapy for people in the gender transition process and finally sex reassignment surgery. Given the invasive and irreversible nature of the latter, the selection criteria are stringent and require fulfilment of prerequisite stages before surgery is undertaken. While there was agreement among the expert witnesses on the fundamentals underlying the concept of Gender Identity Disorder, they disagreed on the appropriateness of providing access to sex reassignment surgery while a person was incarcerated. The abnormal social environment found in prisons may very well detract from adequate diagnosis or even distort the true feelings of the individual seeking access to the surgery. While there was no unanimity on this aspect of prison social realities, CSC settled on its policy of denying access because of doubts raised by some medical professionals working in the area of gender disorders.

Written policies with regard to the issues of placement (choice of carceral institution) as well as access to sex reassignment surgery are clear and unambiguous. They provide that "unless sex reassignment surgery has been completed, male inmates shall be held in male institutions" and that "sex reassignment surgery will not be considered during the inmate's incarceration."⁸¹ Equally unambiguous was the Tribunal's initial finding regarding the placement policy: "CSC's policy requiring that anatomically male prisoners be held in male institutions clearly has an adverse, differential effect on pre-operative male to female transsexual inmates. Non-transsexual inmates are placed in prisons in accordance with both their anatomical sex and their gender. Transsexual inmates, however, are placed in accordance with their anatomical sex, but not their gender. Counsel for CSC indeed concedes that the policy is prima facie discriminatory, on the basis of both sex and disability."⁸² The crux of the matter lay in assessing whether CSC had provided a bona fide justification for its policy on placement of transsexuals.

In support of its policy, witnesses for CSC had emphasized the vulnerability of the female inmate population and the problematic impact that the placing of an anatomical male in their midst would have. Though the evidence on this point was to a certain extent impressionistic, the Tribunal found that it had been supplemented by reference to objective studies on the needs of female prisoners as well as the views of one of the expert witnesses. It concluded that the difficulties women prisoners had with men were in part based on painful life experiences involving physical, psychological and sexual abuse. Put simply, they constituted a vulnerable group that were entitled to have their needs recognized and respected. It was therefore not a reasonable solution, as had been argued, to place male pre-operative transsexuals in a female penitentiary. The Tribunal also concluded that it was neither feasible not desirable to place pre-operative transsexuals in transition in wholly separate institutions, underscoring the extremely low numbers of inmates involved, difficult logistical problems and issues of rehabilitation.

Despite its findings on these two alternatives, the Tribunal went on to conclude that the policy in its present form was unjustified because it failed "to recognize the special vulnerability of the pre-operative transsexual inmate population."⁸³ In other words, CSC had failed to take reasonable steps to accommodate members of this group. The Tribunal ruled that any revamped policy "must recognize the differential effect that housing inmates in accordance with their anatomy has on transsexual inmates...acknowledge their susceptibility to victimization within the prison system...[and] require the individualized assessment of each transsexual inmate by corrections officials, in consultation with qualified medical professionals, as to the appropriate placement within the various types of facilities available in the male prison system..."⁸⁴ It therefore ordered that a new policy for placement of transsexual inmates be formulated in consultations with the Commission so as to accommodate their specific placement needs.

Regarding access to sex reassignment surgery, the Tribunal had little difficulty finding a prima facie case of discrimination. It reasoned that CSC's blanket prohibition during the period of incarceration effectively denied a medical service to even those transsexual inmates who were good candidates, based on the opinion of medical professionals, for sex reassignment surgery. Such denial of medical services (whether classed as essential or elective) amounted to discrimination on the basis of both sex and disability. The Tribunal then went on to consider whether a bona fide justification for the prohibition had been demonstrated by CSC.

Since both the rationality of the policy and the good faith of those who established it were easily demonstrated, the Tribunal centred its analysis on whether the prohibition was reasonably necessary, in the sense that no accommodation of pre-operative transsexuals could be made without incurring undue hardship. It noted that serious doubts had been raised on the evidence about the ability of incarcerated transsexuals to fulfil a key prerequisite to selection as an appropriate candidate for sex-change surgery, namely the successful completion of a real life experience living as a member of the target sex. In the words of the Tribunal:

"We agree with the experts called by CSC that the real life experience requirement of the treatment protocol cannot be satisfactorily fulfilled within the carceral setting. It appears from all of the evidence that pre-operative transsexuals need to be able to interact with both men and women in their day to day lives in order to properly fulfil the requirements of the real life experience...Can these individuals then obtain an appropriate real life experience while incarcerated in male penitentiaries? We think not...[T]he purpose of the real life experience is to test the resolve of the patient as it relates to proceeding with sex reassignment surgery, while also assessing the capacity of the individual to live in their target gender. The patient's resolve is tested by requiring the patient to face the potential loss of employment, family and friends, as well as the general social opprobrium that can follow the decision to live as a member of the target gender. Unlike society at large, the artificial environment of the male prison provides both positive and negative reinforcements that can distort the experience of the individual in such a way as to render the real life experience an unreliable test of an individual's resolve, the capacity to function in the preferred gender, and the adequacy of social, economic, and psychological supports. The real life experience carried out in the prison setting is, therefore, an unreliable indicator of the individual's suitability for sex reassignment surgery."⁸⁵

While this conclusion narrows considerably the already small number of inmates who might be potential candidates for sex reassignment surgery, the Tribunal found that it did not justify the absolute prohibition currently set out in CSC policies. This could only be justified if CSC demonstrated that no one could possibly meet the eligibility requirements regulating access to "a legitimate medical treatment for a recognized medical condition."⁸⁶ The Tribunal provided one example of where an individual could very well fulfil the requirements, namely a case where the person "...had fulfilled the real life experience component of the selection criteria prior to their incarceration."⁸⁷ As to who would make the judgement about an inmate's suitability and readiness for the operation, the Tribunal indicated that it should be made by the medical professionals who had been following the person through the transition process prior to incarceration (unless the inmate and CSC should agree otherwise).

Since CSC had failed to demonstrate that accommodation short of undue hardship could not be made, the Tribunal found the blanket prohibition discriminatory on the basis of sex and disability. It therefore ordered CSC to cease applying the policy in question, but suspended its order for a period of six months to allow CSC to consult with the Commission with a view to formulating a new policy consistent with the reasons set out in its decision.

The obligation of an employer to accommodate a disabled employee up to the point of undue hardship was the central focus of a Tribunal decision in Eyerley v. Seaspan⁸⁸ International. The case involved an employee who, during the course of 2,662 days (1989-1996) on the payroll of the respondent company, had worked only 17.5% of the time. For the most part, his absenteeism was due to a work-related injury to his right wrist which prevented him from performing some of the duties associated with his position as cook/deckhand on the respondent's coastal tugs. In light of his injury (due to which he had spent various periods of time on workers' compensation), Mr. Eyerley requested that he be assigned to smaller tugs with lighter gear in order to avoid heavy and strenuous work. Seaspan would give no guarantee in this regard, offering only to assign the employee to smaller vessels where it was administratively feasible. Work on smaller vessels also proved to be difficult for the employee, who went on workers’ compensation again on July 18, 1995. Finally, in light of medical reports from doctors and the Worker's Compensation Board (WCB) indicating little prospect of the employee's return to work in the near future as a cook/deckhand, his employment was terminated on November 8, 1996 (for reason of non-culpable absenteeism). A complaint alleging discrimination in employment based on disability was made on May 7, 1998.

In its defence, the respondent company argued that when a person's employment is ended due to frustration of contract (i.e. through non-culpable absenteeism) no issue of discrimination based on disability can arise. As a result, the company argued, it cannot be said that on the facts of the complaint a prima facie case of discrimination was established. In support of its argument, the company relied on case law involving wrongful dismissal actions where the principle of frustration of contract had been invoked as a defence. The Tribunal rejected this argument, pointing out that none of the cases cited had dealt specifically with the impact of human rights legislation on the issue of frustration of contract. It referred with approval to an arbitral decision which had ruled that "...an employer has the right to its part of the employment bargain, namely, the employer's performance of the work. But, where the employment rule impacts negatively on a disabled person the correct approach for an arbitrator is to consider whether this employee could be accommodated to the point of undue hardship."⁸⁹ Moreover, the Tribunal pointed out that even the arbitral decisions cited by Seaspan accepted that the principle of non-culpable absenteeism did not operate freely and was in fact constrained by human rights legislation.

Having therefore found that a prima facie case of discrimination based on disability was established on the evidence presented, the Tribunal turned to the issue of accommodation. The work standard at issue, namely that an employee must have a reasonable record of attendance on the job, was clearly connected to legitimate work-related requirements of Seaspan. Yet even where a standard is reasonably necessary, an employer is obliged to accommodate an employee (suffering from a disability) up to the point of undue hardship. As to what constitutes undue hardship, the Tribunal adopted well-known criteria identified by the Supreme Court of Canada, such as financial costs, interchangeability of the workforce and facilities, collective agreements, substantial interference with the rights and morale of other employees, and employee safety. It also pointed out that any review of accommodation involves both a procedural and substantive aspect: "Procedural in the sense that the employer must consider all viable forms of accommodation. Substantive in the sense of assessing the reasonableness of the accommodation offered or the employer's reasons for not offering any accommodation."⁹⁰

On the evidence before it, the Tribunal found that the only accommodation made by Seaspan was to consider the request of the complainant (Mr. Eyerley) to be assigned to smaller tugs. However, Seaspan had made it clear that it was not about to organize its crews around Mr. Eyerley's wrist and that he must be fit to sail on any Seaspan boat. The Tribunal found that Seaspan operated a full range of boats, some of which (such as trainships and shift tugs) involved much lighter work and would have been better suited to the complainant in light of his disability. While the Tribunal was not in a position to determine whether justifiable impediments would have precluded such alternative employment, it found that this possibility was given no consideration nor was a thorough assessment of Mr. Eyerley’s ability to do various jobs carried out.

In fashioning an appropriate remedy, the Tribunal considered it important to bear in mind the undoubted physical limitations of the complainant. It rejected submissions made that an order for lost wages be issued, pointing out that the complainant had received vocational rehabilitation benefits until December 31, 1998 and that he was in any event medically unfit (in light of the evidence presented) to assume duties as a cook/deckhand. As to alternative jobs the complainant might have been offered, the Tribunal considered it too speculative and remote to form the basis of an order for lost wages. The Tribunal also declined to order that the respondent rehire the complainant and give him the first available Mate's position. To do so, reasoned the Tribunal, would bypass the normal Seaspan assessment procedures, ignore the fact that the complainant had not yet successfully completed retraining and received his Mate's ticket, and fail to consider that a Mate's job included occasional deckhand duties that the complainant was unable to perform.

The final possibility considered by the Tribunal concerned deckhand work aboard ship assist tugs. It found that there was a strong possibility that the complainant would be able to perform the lighter duties involved in such work, and that the safety and risk factors were far less acute than aboard other types of tugs operated by Seaspan. It therefore ordered that Seaspan (at its own expense) arrange for a medical assessment of the complainant to determine his level of fitness and degree of impairment. It further ordered that a full vocational assessment be made of the duties of a deckhand aboard ship assist tugs. Should the medical assessment find the complainant capable of performing the duties of a deckhand aboard ship assist tugs, the Tribunal ordered that Seaspan offer him the first permanent position of the sort that became available (without regard to seniority). However, no employee currently occupying such a position was to be removed in order to accommodate the complainant in this regard. Finally, the Tribunal ordered that a sum of $5,000 be paid to the complainant for hurt feelings and loss of self-respect.

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End Notes