20 Canadian Lab. & Emp. L.J. 379 (2017)
Survival of the Fittest: The Failure to Accommodate and Compensate in the Canadian Armed Forces

handle is hein.journals/canlemj20 and id is 389 raw text is: 










        Survival of the Fittest: The Failure

        to Accommodate and Compensate in

             the   Canadian Armed Forces



                          Julie Harmgardt*

      Members  of the Canadian Armed Forces who are injured in the course of
service are treated inequitably on two levels: first, during their military careers,
by the operation of a statutory exemption that enables the CAF to sidestep the
duty to accommodate disabilities, including widespread mental injuries such as
PTSD;  and second, following their medical release from service, by the failure
to provide adequate compensation. Under the Canadian Human  Rights Act,
the duty to accommodate is expressly made subject to the principle of uni-
versality of service, whereby CAF members must at all times and under any
circumstances perform any functions that they may be required to perform.
Universality (or the soldier first rule) thus provides the CAF with an auto-
matic bona fide occupational requirement (BFOR) defence to discrimination
claims, and permits the CAF to engage in prima facie discriminatory conduct
without having to prove that it accommodated a member to the point of undue
hardship. The author argues that universality cannot be justified as reasonably
necessary to achieve operational objectives, having regard to staffing require-
ments and level of risk, and to the fact that the CAF routinely ignores its own
risk tolerance mandate by granting medical waivers. Compensation for CAF
members  post-release is currently provided through the New Veterans Charter.
The  benefits scheme created by the NVC is, in the author's view, seriously
flawed: it is less generous than the predecessor legislation, excessively complex,
raises unfair evidentiary burdens, and fails to ensure timely resolution of claims.
The author concludes by exploring opportunities for reform, and proposes that
a  presumptive burden of proof be implemented for claimants with PTSD,
similar to that which has recently been adopted in several provinces for first
responders under workers' compensation legislation.

1. INTRODUCTION

      Canadian   Armed   Forces  (CAF)   members   are subjected  to a
far-reaching process  of indoctrination in workplace  values, over and
above  what is experienced by other Canadian  employees.  Undeniably,
work-life balance  is difficult to obtain: the very act of signing on for


* BAH  (Queen's University), JD (Queen's University).

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