Canadian Veterans Advocacy

Tuesday, February 3, 2015

New announcement: Disabled soldier sues over dismissal

Disabled soldier sues over dismissal

Case could have impact on hundreds of personnel

By: Mary Agnes Welch

Posted: 10/27/2014 1:00 AM

Last Modified: 10/27/2014 8:43 AM

A Winnipeg soldier turfed from the military because she is disabled is suing the Canadian government, alleging her ouster violated her charter rights.

The lawsuit, filed Friday, asks the court to strike down the "universality of service" rule that mandates all uniformed personnel must be ready for combat deployment at all times. The case could have broad repercussions for the hundreds of disabled soldiers, including those with mental illnesses such as post-traumatic stress disorder, mustered out of the Armed Forces every year against their wishes.

Medical discharge

ABOUT 1,000 soldiers are medically released each year due to illness, employment issues and severe injuries sustained during operations. It's not clear how many are released voluntarily and how many are forced out.

2009 -- 1,074
2010 -- 856
2011 -- 998
2012 -- 1,066
2013 -- 1,190

-- source: Dept. of National Defence

"It feels like you've been thrown out, almost punitive," said Louise Groulx, a former master corporal at 17 Wing. "Those who make the rules have no idea the impact this has on a soldier's soul or heart. We're not disposable."

Groulx, a single mother who served in Haiti during the 1995 peacekeeping mission, badly injured her back in the summer of 1999 during a baseball game on the base, part of her mandatory physical-training requirements. Five surgeries were needed that year to correct a herniated disc. During one, her spinal column was nicked and she was left on a gurney for more than two days with cerebrospinal fluid leaking out from a wet wound that went untreated with antibiotics. From that, she contracted bacterial meningitis, which caused further damage. That debacle left Groulx with post-traumatic stress.

She returned to work at 17 Wing a year after the injury and said she could perform 90 per cent of her duties as an aero-medical technician, a highly specialized trade that involves training all military air crew on the physiological effects of flight.

The only duty she couldn't perform was entering the hypo- and hyperbaric chambers used for training and for emergency treatment, but that amounted to just 10 per cent of her job.

"I loved what I was doing," said the former medic. "I have never had a more supportive group of people."

Not long after returning to work, Groulx was formally assigned "medical employment limitations" which typically trigger a review to determine whether a soldier's injuries put them in breach of the universality policy.

That was a long, complex process for Groulx, as it is for many soldiers. The Canadian Forces gives severely wounded troops up to three years to recover. If they are then unable to meet the standards for combat deployment, the process of medical discharge kicks in.

In 2005, officials in Ottawa decided Groulx was in breach of the rule, but because her trade was critical to operational capability, she was given a temporary reprieve and allowed to remain in the Forces.

Despite hard lobbying by her superior officers, Groulx's reprieve ran out in 2009 and she was finally discharged after a decade of doing her job despite her back injury.

Groulx said she loved being in the military, had no backup plan and cried at her retirement party.

"Talking about my release is still so raw and it shouldn't be after five years," said Groulx. "I think it's an injustice, not just to me but there's many out there who have been let go under universality of service."

Groulx is asking the Court of Queen's Bench to declare the rule, in place since 1985, a violation of the equality clause in the Charter of Rights and Freedoms that prohibits discrimination, including on the basis of physical disability. She is also seeking damages.

"There are all these soldiers like Louise, serving just fine, getting recognition, and then all of a sudden they're not good enough," said Groulx's lawyer, Corey Shefman.

Groulx's statement of claim contains allegations not proven in court, and it will be several weeks before the government files a statement of defence.

A spokesman for the Department of National Defence said he could not comment on the case as it's now before the courts.

But the issue of universality of service has made headlines over the last year, a year in which a rash of soldiers committed suicide. Last fall, several injured ex-soldiers told The Canadian Press they were shown the door on a medical release though they begged to retrain for other jobs within the military.

Many said they were released just shy of hitting the 10-year mark, when they would qualify for a fully indexed pension.

Earlier this year, Canada's outgoing military ombudsman, Pierre Daigle, told a parliamentary committee injured soldiers, especially those with PTSD, fear coming forward because they could lose their jobs and pensions. He called the universality rule arbitrary and unfair.

Groulx agreed, saying she knows many soldiers unwilling to come clean about an illness or injury, especially mental ones, for fear disclosure will trigger their dismissal.

Earlier this month, Defence Minister Rob Nicholson revealed a working group is studying the universality rule, following recommendations by the defence committee.

"This working group is examining how the policy can be best applied to retain individuals who are willing and able to serve, while also ensuring the necessary availability of all Canadian Armed Forces personnel to perform their lawful military service," Nicholson wrote to the committee.

Shefman said the universality rule has been challenged in court before, but no case ever progressed to the stage where a judge ruled on the policy's constitutionality.

Groulx was able to find work soon after her discharge but is now recovering from a sixth back surgery. She says she isn't angry at the Canadian Forces and would return to work as an aero-med tech "in a heartbeat."

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