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

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

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

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

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

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

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