Cruden v. Canadian International Development Agency& Health Canada

Cruden v. Canadian International Development Agency& Health Canada
Collection
Canadian Human Rights Tribunal
Date
2011-09-23
Neutral citation
2011 CHRT 13
File number(s)
T1466/1210
Decision type
Decision
Grounds
Disability
Decision Content
Between:
Bronwyn Cruden
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Canadian International Development Agency
- and -
Health Canada
Respondents
Decision
Member: Sophie Marchildon
Date: September 23, 2011
Citation: 2011 CHRT 13
Table of Contents
Page
I............. Summary. 1
II........... Background and Complaints. 2
III......... Facts. 4
IV......... Type I Diabetes. 12
V........... Facts in Dispute & Positions of the Parties. 15
A. Position of the Complainant 15
B. Position of the Respondents. 16
C. Position of the Commission. 17
VI......... Law & Analysis. 18
A. The Complaint against HC.. 18
i. A complaint can be filed under section 7 of the CHRA in the circumstances of this case 18
ii. The complainant has established a prima facie case of discrimination. 23
iii. HC has not established that the conduct did not occur as alleged or was non-discriminatory. 25
B. The Complaint against CIDA.. 33
i. The complainant has established a prima facie case of discrimination. 33
ii. CIDA’s discriminatory practice was not based on a bona fide occupational requirement 34
iii. Accommodating the complainant in Afghanistan would constitute undue hardship 42
VII....... Conclusion. 61
VIII..... Remedies. 61
Appendix 1
Appendix 2
Appendix 3
Appendices Can Be Found In Second Entry Posted On 09/23/2011
***The Appendices Are Only Available In PDF Format
I. Summary [1] Health Canada conducts medical assessments of Canadian International Development Agency employees seeking postings in other countries. Health Canada has developed medical evaluation guidelines specific to the assessment of employees seeking a posting in Afghanistan. Pursuant to these Afghanistan Guidelines, under the heading “Absolute medical requirements”, employees do not meet the medical requirements for posting if they have a medical condition that would likely lead to a life-threatening medical emergency if access to prescribed medication and/or other treatment is interrupted for a short period of time. On this basis, the complainant alleges that her employer, the Canadian International Development Agency, engaged in a discriminatory practice when it decided that she was not suitable for a job posting in Afghanistan due to the fact that she had a condition of type 1 diabetes mellitus. The complainant also alleges that Health Canada engaged in a discriminatory practice when it recommended to her employer, Canadian International Development Agency that she not be posted to Afghanistan because of her diabetic condition. She also alleges that her employer did not use its discretionary power to decide not to follow Health Canada’s recommendation.
[2] The Afghanistan Guidelines do not reflect equality between all members of society. Although the guidelines are meant to be instructive and informative, their wording suggests mandatory medical requirements without consideration of the individualized circumstances of each person. The process by which Health Canada assessed and arrived at its recommendation, influenced as it was by the Afghanistan Guidelines, failed to consider the inherent worth and dignity of the complainant. The application of these guidelines to the complainant resulted in her being discriminated against in the course of her medical assessment. Health Canada did not provide sufficient evidence that its conduct was non-discriminatory. Therefore, the complainant suffered adverse differentiation on the basis of her disability by the wording and application of the Afghanistan Guidelines by Health Canada.
[3] The evidence indicates that it would pose an undue hardship for the Canadian International Development Agency to accommodate the complainant in Afghanistan. There are serious health and safety risks present for Canadians working in Afghanistan and these risks frequently materialize. It is not only the complainant who bears these risks, but also members of the Canadian Forces and other foreign military personnel. Evidence was lead that the recommendations made by the third independent endocrinologist who assessed the complainant, to accommodate her in Afghanistan could not be enforced at all times and could likely result in putting herself and other CIDA employees in danger. Medical services and facilities are limited including bed space, and therefore, must be preserved for the treatment of troops, injured Afghani civilians and unpredictable emergencies that impact all civilians posted in Afghanistan. In the requirements to accomplish the mission in Afghanistan, pre-deployment screening and medical assessments of employees is warranted and the high standard for safety reasons is justifiable but, should be made in accordance with human rights principles and, on a case by case, individualized approach. Furthermore, Canadian International Development Agency has breached its duty to explore all reasonable accommodation measures for the complainant. It had a duty to obtain all relevant information about its employee’s disability and seriously consider how the complainant could be accommodated. It did not lead sufficient evidence that had explored all reasonable accommodation measures.
[4] Therefore, both complaints are substantiated under section 7 (b) of the CHRA against Health Canada and under sections 7 and 10 of the CHRA against CIDA; and the Tribunal orders appropriate remedial action to eliminate these discriminatory practices.
II. Background and Complaints [5] There is a war in Afghanistan. Combat is continuous, complex and dangerous. At the time of these complaints, Canada was one of 41 countries participating in the International Security Assistance Force (ISAF), a North Atlantic Treaty Organization (NATO) led formation that operates in Afghanistan under the authority of the United Nations (UN).[1] The UN also operates the United Nations Assistance Mission in Afghanistan (UNAMA), a political mission established at the request of the Government of Afghanistan to assist it and the people of Afghanistan in laying the foundations for sustainable peace and development[2]. The Political Affairs Division at UNAMA supports political outreach, conflict resolution, disarmament and regional cooperation. The political mandate of UNAMA supported the implementation of the institutional and political objectives of the Bonn Agreement, signed in November 2001, as well as a range of peace-building tasks[3].
[6] Canada has maintained a presence in Afghanistan since 2001. Canada has participated at many levels in the peacekeeping, security and reconstruction efforts within the country. The situation in Afghanistan calls for strong international cooperation. This international cooperation comes from both military personnel and civilian personnel as reconstruction efforts are often overseen by both military and civilian organizations. At the time of these complaints, all Canadian civilians serving in Kandahar performed their duties under the direction of the Representative of Canada in Kandahar (RoCk), who works under the leadership of the Canadian Ambassador in Kabul.[4] In Canada, the Canadian International Development Agency (CIDA) is the principal organization responsible for providing aid to developing countries. CIDA’s mandate is to manage Canada’s support, aid and resources to developing countries such as Afghanistan.
[7] This is part of the context in which the events giving rise to the present complaints occurred. The complainant, Ms. Bronwyn Cruden, filed two complaints with the Canadian Human Rights Commission (the Commission) on November 8, 2008. First, the complaint alleges that her employer, CIDA, engaged in a discriminatory practice within the meaning of sections 7 and 10 of the Canadian Human Rights Act, R.S.C., 1985, c. H-6 (the CHRA) when it decided that she was not suitable for a job posting in Afghanistan due to her condition of type 1 diabetes. The second complaint alleged that Health Canada (HC) engaged in a discriminatory practice within the meaning of s. 5 of the CHRA when it recommended to CIDA that she not be posted to Afghanistan because of her diabetic condition. The complaint against HC was subsequently amended at the hearing, by consent of the parties, to include sections 7 and 10 of the CHRA. On March 18, 2010, pursuant to paragraph 44(3)(a) of the CHRA, the Commission requested that the Canadian Human Rights Tribunal (the Tribunal) inquire into both complaints. The complaints were consolidated as they involve substantially the same issues of fact and law. The Commission participated at the hearing that took place from January 26 to February 4, 2011, representing the public interest in the proceedings.
III. Facts [8] After carefully reviewing all the evidence provided by the parties including the Agreed Statement of facts my findings of fact are the following:
The complainant is a CIDA employee who currently works at their Gatineau headquarters. From approximately August 6, 2007 to September 7, 2007 the complainant was on temporary duty assignment at the Canadian Embassy in Kabul, Afghanistan. She was not subjected to a pre-deployment medical assessment prior to departure, as at that time, CIDA’s policy did not require a medical assessment of employees being posted for less than one year.
[9] In January 2008, the complainant applied for a number of one year postings in Afghanistan that CIDA was to make available in the near future. She applied for the position of "Director of Kandahar" and for other development officer positions.
[10] On January 20, 2008, the complainant was deployed a second time to Afghanistan, this time in Kandahar, as part of the Provincial Reconstruction Team (PRT). This deployment was to last until February 25, 2008.
[11] During the early morning of February 11, 2008, the complainant had a hypoglycaemic “incident” while she was sleeping. A co-worker in the adjoining room overheard her making noises and movements in her sleep, tried to wake her up and when she wasn’t successful, called a Canadian Forces Medical Officer, who administrated intravenous glucose to the complainant. The complainant was subsequently released after treatment. Later on that day, the complainant was referred to an internal medicine consultant at the Kandahar Airfield (KAF) who strongly recommended that the complainant be repatriated to Canada. The complainant disagreed with the internal medicine consultant’s recommendation and wished to stay on in Afghanistan to complete her temporary duty assignment. CIDA chose to end the complainant’s temporary duty assignment and promptly returned her to Canada.
[12] On February 13, 2008, Michael Collins (Director, Management Services CIDA) sent an email to the complainant and some of her colleagues within the Afghanistan Task Force (ATF) to seek if they were interested in field postings in Afghanistan. Everyone who received this email has since been posted to Afghanistan except the complainant.
[13] Upon her return to Canada, the complainant obtained a letter of support from her treating endocrinologist, Dr. Amel Arnaout. The letter dated February 21, 2008, supports the complainant’s efforts to return to work in Afghanistan. Dr. Arnaout explains that the complainant was assessed on February 18 2008, and that she "is mentally and physically capable of continuing her work in Afghanistan...’’. By e-mail dated February 22, 2008, Marion Parry (Manager, Mobility and Career Programs, CIDA) requested that the complainant be medically assessed in order to ascertain whether or not she could continue her temporary duty assignment and to determine her fitness for posting due to her expressed interest in a formal one-year posting.
[14] In an email dated February 26, 2008 to CIDA, Major Robin Thurlow (Canadian Expeditionary Force Command, JHSS) stated that he was concerned with the fact that no pre-deployment medical screening was conducted for persons deploying to Afghanistan for less than one year. He went on to request support in ensuring that screening be conducted for all personnel being sent to Afghanistan. CIDA subsequently changed its practices to require that all employees being sent to Afghanistan for any period of time undergo a pre-deployment medical screening.
[15] Pursuant to Foreign Service Directive 9 Medical and Dental Examinations (FSD9) (see FSD9 at Appendix #1), which is published by the National Joint Council, HC conducts medical assessments of CIDA employees seeking postings in other countries. FSD9 also provides a process by which these assessments are to take place. Both HC and CIDA have to consider FSD9. In performing medical assessments, HC has developed and publishes the Occupational Health Assessment Guide (OHAG), which is intended to help guide the medical examiner in making an assessment (see section 1 of the OHAG at Appendix #2). Shortly after Major Thurlow’s February 2008 email indicating that medical assessments should be done for all postings to Afghanistan, HC developed the Medical Evaluation Guidelines for Posting, Temporary Duty or Travel to Afghanistan (Hardship Post level 5 with Hostility Bonus) (the Afghanistan Guidelines) (see Afghanistan Guidelines at Appendix #3). Under the heading “Absolute medical requirements”, the Afghanistan Guidelines state:
Employees do not meet the medical requirements for assignment or posting: [..] If they have a medical condition that would likely lead to a life-threatening medical emergency if access to prescribed medication and/or other treatment is interrupted for a short period of time.
[16] On March 18, 2008, the complainant met with Dr. Maureen Peggy Baxter (Occupational Health Medical Officer (OHMO) with HC’s Workplace Health and Public Safety Program WHPSP) Health Clinic (Clinic) to determine if the complainant was a suitable candidate for a position in Afghanistan. The complainant provided Dr. Baxter with past health records and a copy of Dr. Arnaout’s letter dated February 21, 2008. Following this medical assessment, on April 9, 2008, Dr. Baxter consulted with some of her fellow OHMO at the Clinic. They unanimously agreed on a recommendation that the complainant was not medically fit to be posted to Kabul. Dr. Eva Callary and Dr. Lloyd-Jones were part of the discussion and did not seek an independent third opinion under s. 9.05(a) of FSD9 before reaching this decision. That same day, Dr. Baxter indicated by letter to Clement Bedard (Program Assistant, Assignments Management Centre, CIDA) that in light of the fact that the complainant’s medical condition is chronic in nature and there was a risk of destabilization, she could not be recommended for deployment to Afghanistan because she required sophisticated care and treatment not available at this post. Dr. Baxter reported however, that Dr. Arnaout had submitted information indicating the complainant’s current condition is stable. Dr. Baxter’s letter was not sent to the complainant at that moment nor did HC advise her of their recommendation they made to CIDA.
[17] Upon receipt of this recommendation from HC, CIDA decided that it would not send the complainant to Afghanistan and did not make further inquiries of Dr. Baxter or Dr. Arnaout or pursuant to s. 9.05 (b) of FSD9 to seek out an independent third medical opinion.
[18] On April 10, 2008, the complainant received a letter from Ms. Parry informing her that she had not been selected for the position of “Director Kandahar”. Ms. Parry did not inform the complainant on the outcome of the other applications for development officers’ postings to which she had also applied.
[19] Around April 15 or 16, 2008, the complainant had a conversation with Michael Collins who told her that HC had recommended against returning or posting her to Afghanistan.
[20] The complainant attempted to gather information from HC. The complainant and Dr. Baxter exchanged emails and had a telephone conversation. On April 17, 2008, the complainant learned from Dr. Baxter that while HC had the responsibility to provide recommendations based on health assessments, all decisions concerning the deployment of employees rested with CIDA. The complainant forwarded Dr. Baxter’s email to Michael Collins (Director, Management Services, CIDA) and asked if it would exercise its discretion to allow her to go to Afghanistan. No one from CIDA replied to this email. On April 21, 2008, the complainant wrote to Dr. Baxter to ask if HC would provide a list of countries to which it would not recommend for posting. On April 23, 2008, Dr. Baxter wrote back to say that such a list did not exist and that in general, higher hardship levels are less likely to have suitable medical services available and suggested the complainant short list some of the countries she was interested in, and ask her department to send a fitness request.
[21] On June 2, 2008, the complainant wrote and questioned Danica Shimbashi (Director General, Human Resources, CIDA) in order to find out if there had ever been a situation where CIDA did not follow a HC recommendation in the past. The complainant also asked if CIDA would ask for an advance fitness assessment for its postings.
[22] On June 20, 2008, as a response, Ms. Parry who had received the request forwarded from Ms. Shimbashi to her, replied to the complainant directly and advised her that HC is the only occupational health body responsible for medical assessments. Ms. Parry said she must advise management to be guided at all times by HC’s determination since CIDA’s human resources staff and managers are not in any position to re-evaluate a medical opinion. Furthermore, CIDA informed the complainant that HC’s medical assessments were only valid for a period of six months being post-specific and that CIDA could not authorize evaluations now for possible future postings. Ms. Parry suggested to the complainant to follow-up with Dr. Baxter to see which levels of hardship could reasonably be expected to have the necessary medical capacity to respond to her health condition.
[23] On August 26, 2008, Mr. Wallace, from CIDA, wrote a letter to the complainant saying that HC had indicated a willingness to review countries where posting may be possible with her condition and that she could contact Dr. Eva Callary (Medical officer in charge, Occupational Health Clinic, WHPSP, HC) in this regard.
[24] On September 25, 2008, the complainant met with Dr. Eva Callary and she provided a list of 19 countries that were expected to have postings for 2009 to the complainant. During this meeting, Dr. Callary informed the complainant that it was possible to request an internal review of her circumstances with HC’s Medical Advisory Committee (HC-MAC) this was the first time the complainant was made aware of such a possibility.
[25] On October 3, 2008, Dr. Callary, via email, assured the complainant that HC would respect the decision of the HC-MAC whatever it may be.
[26] On November 28, 2008, Dr. Baxter responded to the complainant concerning the list of 19 countries that Dr. Callary provided previously. HC found that of the 19 countries, 5 were considered suitable, 5 were considered unsuitable, and 3 were listed as “missions with concerns” which would require individual assessment. For the remaining six missions, Dr. Baxter said that insufficient information had been received from the responsible regional medical officers and that an addendum would follow when it received further information. No further addendum was delivered.
[27] The same day, Dr. Arnaout wrote a letter of assessment for the complainant and stated she considered the complainant being optimally managed in her diabetes and hoped this letter would help in her appeal process concerning postings in Afghanistan. The complainant sent a written submission to the HC-MAC to review her medical situation.
[28] On January 16, 2009 the HC-MAC rendered its recommendation and sent a letter to Dr. Baxter to this effect. It asked the complainant to undergo a medical examination with an independent medical endocrinologist, including a review of her history, clinical status and detailed reports on medical conditions in Afghanistan. The HC-MAC further said that if the independent medical endocrinologist was of the opinion that a posting to Afghanistan was not at risk to her or others that it would sign off on her case as meeting the medical requirements for this posting. However, if the independent medical endocrinologist was of the opinion that the posting was medically inadvisable, the original recommendation would stand. Dr. Baxter sent a copy of the HC-MAC decision to the complainant on January 30, 2009.
[29] On February 15, 2009, the complainant informed HC that she would be willing to go through the medical exam towards midsummer 2009.
[30] On September 22, 2009 the complainant was examined by Dr. Hugues Beauregard, an independent endocrinologist in Montreal selected by an outside company (Compremed Canada Inc.). Dr. Joanne Lloyd-Jones (OHMO, HC) had sent Dr. Beauregard the complainant’s history, described the available medical facilities in Afghanistan, and identified the questions that HC wanted Dr. Beauregard to answer. In his preliminary report dated September 23, 2009, Dr. Beauregard considered the complainant capable to adapt to harsh working conditions and considering her knowledge in the management of her diabetes, she should be given permission to accept a posting to Afghanistan. In his report dated September 29, 2009, Dr. Beauregard, classified the complainant as a well informed, organized and a motivated patient. According to Dr. Beauregard, the complainant faced exposure to health risks slightly more elevated than non-diabetics even though she effectively managed her condition of type 1 diabetes. Dr. Beauregard was of the opinion that the complainant was fit for deployment to Afghanistan due to the fact that the health risks could be reduced to, what he termed as, an ‘acceptable level’ so long as she could bring the equipment she needed, she was fit to work without restrictions at Kabul, KAF, PRT. Pursuant to Dr. Beauregard’s suggestion, the complainant underwent a cardiac stress test and a psychological assessment, to examine her capacity to handle stress associated with conflict zones. She was deemed psychologically fit for full-time work and eventual Afghanistan posting. The complainant gave copies of Dr. Beauregard’s report to various CIDA officials in October 2009, including her immediate supervisor Dave Metcalfe and Amy Baker (Chief of Staff, President’s Office, CIDA) and Joanne Marquis (Human Resources, CIDA).
[31] On November 5, 2009, HC asked Dr. Beauregard to clarify the content of his medical report taking into consideration the current Afghanistan Guidelines. Dr. Lloyd-Jones, wrote to Clement Bedard letting him know she had received information from Dr. Beauregard but was seeking clarification.
[32] On November 19, 2009, Dr. Beauregard responded to Dr. Lloyd-Jones’s request for clarification. He wrote that the complainant would be deemed unfit by HC’s "absolute medical requirement" that no employee "...have a medical condition that would likely lead to a life-threatening medical emergency if access to prescribed medication and/or other treatment is interrupted for a short period of time" (see Afghanistan Guidelines at Appendix #3). However, Dr. Beauregard remained of the view that the complainant could still be deployed since she could manage her diabetes in the prevailing conditions in order to bring any risk within acceptable levels.
[33] The same day, Dr. Lloyd-Jones wrote again to Mr. Bedard. In her letter, she stated that Dr. Beauregard had concluded that the complainant should be allowed to go to Kabul, the KAF or PRT in Kandahar. Dr. Lloyd-Jones indicated that his recommendation would change if he were to follow the wording contained in the Current HC Afghanistan guidelines.
[34] Dr. Lloyd-Jones also asked Dr. Beauregard for clarification concerning implications for travel to remote areas. On November 24, 2009, Dr. Beauregard clarified that the risk of traveling was acceptable, so long as the complainant could have extra food and insulin to carry with her. Dr. Beauregard concluded saying he could not comment on the risks inherent to the political instability in the area. Dr. Lloyd-Jones passed this information on to Mr. Bedard in a letter dated December 7, 2009.
[35] On December 9, 2009, France Genest (Director, Human Ressources Operations, CIDA) wrote a letter to Dr. Lloyd-Jones in which she asked her to confirm CIDA’s understanding that HC’s initial recommendation remained unchanged and if a further medical assessment would be required in connection with the complainant’s application to be posted to Afghanistan as part of the 2010 assignment exercise.
[36] On December 16, 2009, Dr. Lloyd-Jones informed Ms. Genest that Dr. Beauregard concluded that the complainant did not meet the absolute medical requirements of the Afghanistan Guidelines. Dr. Lloyd-Jones added that Dr. Beauregard was of the view that the complainant could work and travel in Afghanistan, if she (i) has access to medication, testing equipment and backup supplies at all times, (ii) lives and sleep in a room with a person aware of her condition, and (iii) has extra food and medication for travel. She concluded in saying that the final decision whether or not to post the complainant was CIDA’s decision so as the decision to seek another medical assessment in the absence of any compelling new medical factors.
[37] On January 11, 2010 the complainant was informed by Bob Johnston (Director General of the Afghanistan Task Force CIDA) that, in light of the information it received from HC, no further consideration would be given to posting her to Afghanistan unless there was a change to her medical condition.
IV. Type I Diabetes [38] The Complainant was diagnosed with type 1 diabetes mellitus at age 10 and has undergone different treatments over the course of her life. Type 1 diabetes is a condition whereby the pancreas no longer produces insulin; as a result, the complainant is insulin-dependent. She must monitor her glucose levels and is on insulin therapy. The complainant often uses an insulin pump and a sensor to assist her in maintaining her blood sugar levels at normal range.
[39] Insulin therapy is required for the survival of persons with type 1 diabetes. There are different kinds of insulin and also different methods for insulin intake. One option is to take insulin with a syringe or pen as required. Another option is to use an insulin pump, which is a portable, battery-operated, device that is programmed to deliver insulin 24 hours per day through a small catheter under the skin.
[40] Regular monitoring of blood sugars is also required for persons with type 1 diabetes. The level of sugar in the blood can be affected by a number of factors, including the administration of insulin, food intake, physical exercise; stress levels and inter current illness. Persons with type 1 diabetes are at risk of short and long term complications, which can include kidney or renal disease (diabetic nephropathy), eye disease (diabetic retinopathy), nerve damage (diabetic neuropathy) or other end organ disease.
[41] Individuals with type 1 diabetes are also at risk of suffering from hypoglycaemia and hyperglycaemia. Hypoglycaemia occurs when the blood sugar is too low. This occurs when the person with diabetes does not consume enough nourishment in a timely fashion or takes too much insulin, causing the sugar in the blood to be consumed more rapidly than anticipated. The symptoms of hypoglycaemia range from hunger, anxiety, shakiness, sweating, and irritability. If left untreated, symptoms may progress to confusion, loss of consciousness, seizures and possibly death. A person that experiences a severe hypoglycaemic reaction resulting in cognitive function deterioration, convulsion and coma would need help from a third party to help them ingest sugars, to provide an injection of glucagon (a hormone that increases the blood sugar level) or to administer intravenous glucose. Intravenous glucose cannot be administered by a person with no medical qualifications, for example, a qualified person to administer intravenous glucose would be a medical technician, a nurse or a doctor. However, anyone can receive training to give a glucagon injection. In certain instances, hypoglycaemic unawareness occurs whereby the early signs of hypoglycaemia go unnoticed or are absent. Severe hypoglycaemic events increase with age. Also, the more a person experiences them, the more vulnerable that person is to experiencing another severe hypoglycaemic event in the future.
[42] Hyperglycaemia is another complication that can result from type 1 diabetes. It occurs when a person’s blood sugar level becomes too high. Hyperglycaemia can be caused by numerous factors, including excessive consumption of food or sugar, infection, trauma, increased stress, and failing to take enough insulin in a timely fashion. Symptoms of hyperglycaemia can include hunger, excessive thirst, frequent urination, blurred vision or fatigue. Most of the time a person will detect early symptoms of hyperglycaemia and correct the problem, for example, by taking insulin. If left untreated, hyperglycaemia can lead to an acute complication called diabetic ketoacidosis (“DKA’’). DKA occurs when high blood sugar levels cause the body to break down fat cells for fuel, rather than convert sugar in the blood. This process releases waste products called ketones that can accumulate in the blood and affect the body’s metabolism. Signs and symptoms of DKA can include fruity odour on the breath, confusion, nausea, vomiting and weight loss. DKA is life-threatening and requires emergency treatment, which includes administration of fluids and insulin and can require hospitalisation.
[43] A severe hyperglycaemic or hypoglycaemic event can often be prevented by many means and by the use of an insulin pump and a sensor. The complainant has been outfitted with a system called the Continuous Glucose Monitoring System (CGMS). The CGMS automatically checks blood glucose levels every few minutes using a sensor inserted under the skin. It can sound an alarm if levels are too high or too low. The CGMS is designed to interact with an insulin pump. An insulin pump replaces insulin injection therapy. The pump can administer insulin in two ways: (1) it injects a basal rate of insulin (a regular series of small doses); or, (2) it injects a bolus rate (an increased dose of insulin programmed when carbohydrates are to be consumed). It is possible to suspend or adjust the basal rate when needed. In the event the CGMS is not working, the person with type 1 diabetes will switch to needles and insulin. The CGMS is not a foolproof tool: it only helps with the surveillance and management of diabetic symptoms. While this tool may help diminish the risk of a hypoglycaemic event occurring, the use of it cannot guarantee that such an incident will not reoccur. In the event of such an incident, the complainant would need a glucagon injection. I find, the CGMS’ use is not very well documented because no significant study has been performed on the subject.
[44] The complainant has extensive knowledge of her condition and how to cope with it, even during her pregnancy (at the time of the hearing). She also possesses a good knowledge of her insulin pump and sensor and explained their functioning very clearly at the hearing. There are ways to prevent water, heat and sand, all current conditions in Afghanistan, from damaging the insulin pump. The complainant takes 12 readings a day of her blood sugar levels and notes them in a notepad. She is able to skip meals even with her condition because of the way she controls her blood sugar levels. The complainant keeps sugar tablets with her in case of a low blood sugar reaction. She also gave examples of other food intake she may use in the same situation. She lives alone and copes with the dangers of hypoglycaemia by herself. She has never had a severe hypoglycaemic event in her sleep while living in Ottawa. Since 2009, the complainant uses a sensor to sound an alarm that can wake her up if her blood sugar levels are too low. Whenever the complainant travels or works overseas, she keeps her insulin, needles and other materials with her in case she needs it.
V. Facts in Dispute & Positions of the Parties A. Position of the Complainant [45] According to the complainant, CIDA and HC discriminated against her on the basis of her diabetic condition. As far as the complainant is concerned, her medical condition is in no way an obstacle to her career. During her stay in Afghanistan, the complainant travelled in an armoured vehicle and had her medical supplies with her at all times. The day following her hypoglycaemic event in Afghanistan, the complainant was well and did not need additional care. She reported for duty as usual. Prior to, and since her hypoglycaemic incident in Afghanistan she never required hospitalisation for her diabetes. Since this incident, the complainant affirms that she has taken preventative steps in order to ensure that such an incident does not reoccur in the future.
[46] The complainant argues that the Afghanistan Guidelines place a blanket ban on all type 1 diabetics. This general prohibition does not take into account one diabetic’s particular characteristics over another. The complainant argues that she manages her diabetes in a way that permits her to accomplish her tasks without putting her or third parties in danger. She is of the view that she requires only the same level of security available to all other CIDA employees deployed to Afghanistan and that a medical evacuation for complications related to her diabetes is very unlikely. Furthermore, the complainant asserts that no personnel from CIDA have ever been taken hostage while in Afghanistan.
[47] The complainant contends that CIDA did not inform her of her rights and obligations when seeking accommodation. In this regard, CIDA’s communications with her were not prompt and were often given after lengthy intervals. She claims that she was never provided with a copy of FSD9 or informed about HC’s medical assessment process.
[48] According to the complainant, CIDA must attempt to find ways to accommodate the complainant that would minimize any risk she may pose, to a reasonable level and, that CIDA only made a minimal attempt to remedy the situation. The complainant claims she attempted to work with CIDA to eliminate any perceived risks she may have posed by being posted to Afghanistan. The possibility of limiting all the complainants’ functions to “inside the wire” which means Protective perimeter at Kandahar airfield was advanced, as was the recommendation that the complainant share a room with an individual cognizant of her condition and the treatment of it. Furthermore, the complainant argues that CIDA could have chosen to instruct its employees on how to administer glucagon injections. She was also willing to sign a waiver of liability in order to be able to be posted to Afghanistan.
[49] The complainant claims that the impact of not being posted to Afghanistan was that she did not gain the field experience necessary for her career plan. Had the complainant received the posting in Afghanistan she feels confident that she would have received experience in managing programs, projects or issues in the area of international development. The complainant has applied for other competitions in CIDA in order to gain the field experience she feels she lost.
B. Position of the Respondents [50] CIDA and HC filed a joint response to these complaints.
[51] According to the respondents, accommodating the complainant in Afghanistan would cause undue hardship to the employer. Canada is at war in Afghanistan. Danger is everywhere and it is not possible for the complainant to be in control of her environment at all times. The medical facilities available in Afghanistan are ill equipped and overburdened. Medical evacuations are expensive and dangerous, as the helicopters used for these evacuations are often the target of enemy forces. Accommodating the complainant in Afghanistan poses an unacceptable level of risk to the complainant, to CIDA’s operations and to the operations of the Canadian Armed Forces. Since the complainant has already suffered a hypoglycaemic incident in Afghanistan, the respondents consider their position to be reasonable.
[52] CIDA contends that it attempted to accommodate the complainant by eliminating the travel requirement of her position. Moreover, a detailed list of appropriate countries for deployment based on the complainant’s medical conditions was created and given to the complainant to help her with her career plans.
[53] The respondents contend that medical screenings are necessary before deploying employees to foreign countries. In this case, the rationale for not sending individuals with chronic diseases to Afghanistan is risk minimization in an already unstable and risky environment. CIDA maintains that it does not have the expertise needed to pronounce themselves on health matters, which is why they rely on HC’s recommendations. CIDA is not the only department that requires medical screening and recommendations from HC in order to deploy its employees. The Department of Foreign Affairs and International Trade (DFAIT) also relies on HC for recommendations before deployment. CIDA officials inquired to DFAIT if they had ever deployed an employee against a HC recommendation. DFAIT’s response was that it was uncommon, and likely only occurred on two separate occasions.
C. Position of the Commission [54] The Commission is of the view that HC’s Afghanistan Guidelines can be interpreted as imposing a blanket ban on sending any person with type 1 diabetes to Afghanistan. The Commission also submits that CIDA may have interpreted the guidelines as imposing a blanket ban as it cited HC’s recommendation and guidelines in deciding that it would not allow the complainant to work in Afghanistan.
[55] The Commission argues that CIDA has not shown that it turned its minds to the possibility of finding ways, short of undue hardship, to bring any risks of accommodating the complainant in Afghanistan within tolerable levels. According to the Commission, since accommodative options in Afghanistan were not explored, the Afghanistan Guidelines cannot be justified.
[56] The Commission submits that CIDA breached its procedural obligation to accommodate the complainant by failing to take active steps to obtain all the relevant medical information necessary to make a fair, individualized and comprehensive decision. In this regard, the respondents did not treat the complainant in a fair and transparent manner, or respect her needs for information and support.
VI. Law & Analysis A. The Complaint against HC i. A complaint can be filed under section 7 of the CHRA in the circumstances of this case [57] The complaint against HC was originally filed pursuant to section 5 of the CHRA. By consent of the parties, the complaint was amended to include sections 7 and 10 of the CHRA as well. Given the unique relationship between the complainant and HC in this case, a question arises as to which of sections 5(b), 7(b) and/or 10(a) of the CHRA provide jurisdiction for the Tribunal to consider a claim against HC in this case. Each of these sections will be examined in turn.
[58] Section 5(b)
Section 5(b) of the CHRA provides:
5. It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public
...
(b) to differentiate adversely in r