Background
RCMP Constable Michael Desson experienced a seizure in 2010, was diagnosed with focal epilepsy, and was reassigned from operational policing to administrative duties. Under the RCMP’s policy, an officer diagnosed with epilepsy generally could not return to operational work until remaining seizure-free for five years. Desson returned to operational work approximately six weeks before reaching that mark.
Desson filed a human rights complaint alleging that the policy discriminated against him because of disability. The Canadian Human Rights Tribunal found prima facie discrimination, including a financial disadvantage from lost operational-overtime opportunities, but dismissed the complaint after concluding that the RCMP had justified the policy as a bona fide occupational requirement. Desson sought judicial review of the Tribunal’s analysis under the third step of the Meiorin test: whether the policy was reasonably necessary and whether he could be accommodated without undue hardship.
The Court’s Holding
The Federal Court held that the Tribunal’s reasonable-necessity analysis was unreasonable. The Tribunal concentrated on the RCMP’s efforts to place Desson in administrative positions, rather than meaningfully considering whether he could have performed some operational work through individualized restrictions or an O3 medical profile without causing undue hardship. Accommodation had to be assessed as an integral part of determining whether the discriminatory standard itself was reasonably necessary, not as a separate inquiry conducted while leaving the standard intact.
The Court also found circular reasoning in the Tribunal’s reliance on the RCMP’s one-percent risk threshold to justify the five-year rule without examining whether that threshold was itself necessary. In addition, because the Tribunal relied heavily on medical testimony to find that seizure-recurrence risk fell to one percent after five years and could not be assessed individually, it was unreasonable not to address Desson’s repeated objection that the witnesses had not been qualified as experts. The Court allowed the application, remitted the complaint to a different Tribunal decision-maker, and awarded Desson $2,500 in costs.
Key Takeaways
- An employer defending a discriminatory standard as a bona fide occupational requirement must show that affected employees cannot be accommodated within the standard without undue hardship.
- Offering administrative work did not answer whether the RCMP could safely accommodate Desson in modified operational duties or permit an earlier return based on an individualized assessment.
- A safety-sensitive employer cannot justify a rule merely by invoking its chosen risk threshold; the decision-maker must examine whether the threshold and resulting rule are reasonably necessary.
Why It Matters
The decision reinforces that workplace safety concerns do not displace the individualized accommodation analysis required by Canadian human rights law. Where exceptions or modified duties may be feasible, adjudicators must consider what those possibilities reveal about the necessity of a blanket exclusion.
It also underscores that administrative tribunals must respond to significant evidentiary objections when disputed evidence is central to an employer’s justification of a discriminatory occupational standard.