Failure to analyze accommodation to point of undue hardship was incorrect and unreasonable

DISCRIMINATION

Failure to analyze accommodation to point of undue hardship was incorrect and unreasonable

Applicant was seafarer who sought Marine Medical Certificate confirming his physical and mental fitness for purpose of employment. Applicant was examined by Transport Canada marine medical examiner who raised concerns regarding applicant’s fitness for seafaring duty. On August 31, 2010, Transport Canada informed applicant that he was unfit to hold certificate. Decision was based on alcohol dependence, major depression and developmental disorder. Applicant unsuccessfully appealed to Transportation Appeal Tribunal. Thereafter, applicant addressed his alcoholism and was issued three-month restricted certificate in 2011 that found he was fit for duty with specific limitations. In October 2012, applicant was issued unrestricted certificate. Applicant filed human rights complaint in June 2012 alleging discrimination on basis of disability. Canadian Human Rights Commission recommended dismissal of complaint on basis of no adverse differential treatment and bona fide safety justification. Applicant applied for judicial review of commission’s decision. Application allowed. Commission’s investigation report failed to analyze, as was required, whether Transport Canada had accommodated persons with characteristics of applicant without incurring undue hardship. Failure to analyze accommodation to point of undue hardship was both incorrect and unreasonable. Matter was remitted to commission for redetermination of whether Transport Canada accommodated applicant to point of undue hardship.
Walsh v. Canada (Attorney General) (Feb. 23, 2015, F.C., Donald J. Rennie J., File No. T-1207-14) 251 A.C.W.S. (3d) 119.