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Legal Brief

Legal Brief. Thwaites v. Canada (Armed Forces) (1993), 19 C.H.R.R. D/259 Canadian Human Rights Tribunal. Facts. The complainant Thwaites had been a naval electronics sensor operator aboard a Canadian naval destroyer

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Legal Brief

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  1. Legal Brief Thwaites v. Canada (Armed Forces) (1993), 19 C.H.R.R. D/259 Canadian Human Rights Tribunal Nina Stephens

  2. Facts • The complainant Thwaites had been a naval electronics sensor operator aboard a Canadian naval destroyer • Diagnosed as HIV positive and was subject to investigation for suspected homosexuality • Thwaites security status was downgraded to door attendant • Thwaites was later released from the forces and filed a complaint under the Canadian Human Rights Act. Nina Stephens

  3. Issues • Did the Canadian Armed Forces discriminate against the complainant on the basis of disability contrary to section 7 of the Canadian Human Rights Act? • was the treatment of the complainant by the Canadian armed forces justified on the basis of a bona fide occupational requirement under section 15 of the Act? Nina Stephens

  4. Arguments: Thwaites • Discriminated against on the basis of disability, as well as sexual orientation • Substantive equality was not being fulfilled, and Thwaites was not receiving equal opportunity • His position was downgraded even though it is not specified that being without HIV is a bona fide job requirement Nina Stephens

  5. Arguments: Canada (Armed Forces) • Concern for “undue hardship” as destroyers did not have medical doctors on board and were unequipped to monitor and treat the complainant’s condition • Re – categorizing Thwaites was in keeping with an Armed Forces general policy, regarding enlisted personnel who were HIV or AIDS patients requiring the services of a medical specialist. Nina Stephens

  6. Decision • The court upheld his claim for damages, Thwaites was awarded $152 015 plus interest, for lost and future wages as well as costs. • The Attorney General of Canada appealed the decision of the Human Rights Tribunal. Nina Stephens

  7. Rationale • The defense of “undue hardship” excuses an employer only where accommodating an employee’s disability would cause significant difficulty or expense • The Canadian Armed Forces failed to show that it could not accommodate the complainant without significant risk to him and others • They also failed to demonstrate that no reasonable alternative existed other than release Nina Stephens

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