BETWEEN:
THE ATTORNEY GENERAL OF CANADA
(CANADIAN ARMED FORCES)
Appellant
and
RAYMOND IRVINE
Respondent
and
CANADIAN HUMAN RIGHTS COMMISSION
Respondent
Heard at Edmonton, Alberta, on December 14, 2005.
Judgment delivered from the Bench at Edmonton, Alberta, on December 14, 2005.
REASONS FOR JUDGMENT OF THE COURT BY: SHARLOW J.A.
ROTHSTEIN J.A.
MALONE J.A.
Docket: A-86-05
Citation: 2005 FCA 432
CORAM: ROTHSTEIN J.A.
SHARLOW J.A.
MALONE J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
(CANADIAN ARMED FORCES)
Appellant
and
RAYMOND IRVINE
Respondent
and
CANADIAN HUMAN RIGHTS COMMISSION
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Edmonton, Alberta, on December 14, 2005)
[1] This is an appeal by the Canadian Armed Forces (CAF) from a decision of the Federal Court (2005 FC 112) dismissing an application for judicial review of a decision of the Canadian Human Rights Tribunal (2004 CHRT 9). The Tribunal found that the CAF discriminated against Mr. Raymond Irvine in 1996 when it determined, through the CAD Committee, that he was medically unfit for service.
[2] The function of the Federal Court, and this Court, is not to determine whether the CAD Committee made a correct determination of Mr. Irvine's fitness for military duty. Rather, it is to determine whether the decision of the Tribunal, in assessing the decision of the CAD Committee, involved patently unreasonable findings of fact.
[3] Although a number of grounds of appeal were asserted in this case, counsel for the appellant conceded that the essence of the dispute rests on the Tribunal's finding that Mr. Irvine's medical condition was not fairly assessed by the CAD Committee and therefore the medical assessment could not meet the onus on the CAF to establish that it could not accommodate Mr. Irvine without undue hardship. As this dispute is essentially related to findings of fact, it was reviewed by the Federal Court on the standard of patent unreasonableness. The appellant does not suggest that any other standard of review should have been applied.
[4] Despite the able and thorough submissions of counsel for the appellant, we are unable to conclude that the decision of the Federal Court should be reversed.
[5] We would add that we do not read the Tribunal's decision as necessarily requiring the CAD Committee to embark on every conceivable form of medical test. Rather, we read the decision as requiring a fair assessment of all of the available medical evidence. We note particularly that this appeared to be a close case, with at least one very well qualified doctor expressing the opinion to the CAD Committee that Mr. Irvine should be assessed as "G3" rather than "G4". The record discloses no specific explanation as to why the CAD Committee reached the opposite conclusion.
[6] For these reasons, this appeal will be dismissed.
"K. Sharlow"
____________________________
J.A.
"I agree"
"B. Malone J.A."
"I agree"
"Marshall Rothstein J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-86-05
(APPEAL FROM A JUDGMENT OR ORDER OF THE HONOURABLE JUSTICE CAMPBELL DATED JANUARY 26, 2005, DOCKET NO. T-533-04)
STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA(CANADIAN ARMED FORCES) AND RAYMOND IRVINE AND CANADIAN HUMAN RIGHTS COMMISSION
DATE OF HEARING: DECEMBER 14, 2005
REASONS FOR JUDGMENT OF THE COURT BY: ROTHSTEIN, SHARLOW, MALONE, JJ.A.
DELIVERED FROM THE BENCH BY: SHARLOW J.A.
APPEARANCES:
| FOR THE APPELLANT
|
|
| FOR THE RESPONDENT (SELF REPRESENTED)
|
|
| MR. PHILIPPE DUFRESNE |
FOR THE RESPONDENT (CANADIAN HUMAN RIGHTS COMMISSION) |
SOLICITORS OF RECORD:
|
DEPUTY ATTORNEY GENERAL OF CANADA OTTAWA, ON |
FOR THE APPELLANT
|
|
MR. RAYMOND IRVINE ST. ALBERT, ALBERTA |
FOR THE RESPONDENT (SELF REPRESENTED)
|
| CANADIAN HUMAN RIGHTS COMMISSION OTTAWA, ON |
FOR THE RESPONDENT (CANADIAN HUMAN RIGHTS COMMISSION) |