The Canadian Human Rights Tribunal has dismissed portions of a transgender woman’s discrimination complaint against the Canadian Armed Forces, ruling that some allegations were already settled through a class action agreement while others fell outside the complaint’s original scope.
The tribunal member found that C.D., a former CAF member, could not pursue discrimination claims for incidents that occurred before November 2019 because she had received compensation through the Final Settlement Agreement (FSA) from class action lawsuits filed by military personnel who experienced sexual misconduct.
However, the tribunal allowed C.D. to proceed with allegations covering a narrow window from late November 2019 to November 2021, when she was serving on HMCS Winnipeg at CFB Esquimalt.
Class action settlement creates legal barrier
The ruling centered on two class action lawsuits filed in 2016 and 2017 by former CAF members against the Government of Canada. The lawsuits alleged sexual harassment, sexual assault and discrimination based on sex, gender, gender identity or sexual orientation.
The Federal Court approved the FSA on Nov. 25, 2019, providing financial compensation to class members who experienced what the agreement defined as “Sexual Misconduct” up to that date. The FSA defined this term to include “sexual harassment,” “sexual assault” and “discrimination on the grounds of sex, gender, gender identity or sexual orientation.”
C.D. chose not to opt out of the class action and received compensation under the FSA process based on some of her discrimination allegations.
The tribunal found that proceeding with allegations covered by the settlement would constitute an abuse of process, explaining that “when two parties agree to settle a legal dispute, the principle of finality demands that the settlement be given effect.”
CAF’s broad interpretation rejected
The Canadian Armed Forces argued that the FSA’s release provision should apply not only to incidents before the settlement date but also to any future complaints of harassment based on gender identity in connection with military service.
The tribunal firmly rejected this interpretation, stating: “There is nothing in the text of the FSA or its surrounding circumstances that would support such an interpretation. Such an interpretation would in effect immunize the Respondent from any future allegations of Sexual Misconduct relating to a claimant’s military service until the end of their career.”
The tribunal noted that accepting CAF’s position would essentially allow parties to “contract out of the application of human rights legislation in relation to future incidents of discrimination or harassment,” which is not permitted under law.
Complaint’s scope narrowed significantly
C.D.’s original complaint, filed in October 2020, focused on discrimination and harassment she experienced while posted on HMCS Winnipeg between January 2019 and April 2020. She alleged persistent misgendering, ostracization by supervisors and colleagues, harassing comments, and differential treatment regarding accommodations, leadership roles and performance evaluations.
However, her Statement of Particulars expanded the timeline to over five years, from January 2019 to April 2024 when she was medically discharged. The expanded version included allegations about her transfer to the Esquimalt Transition Unit in 2021 and subsequent treatment there, where she claimed she was poorly supported, denied career advancement opportunities and not given required performance reviews.
The tribunal ruled these later allegations fell outside the complaint’s scope because they lacked sufficient connection to the original discrimination claims and “amount to a new complaint that should properly be assessed by the Commission.”
Limited window remains for hearing
After striking the pre-November 2019 and post-November 2021 allegations, C.D.’s complaint now covers approximately two years of incidents while she served on HMCS Winnipeg.
The tribunal will allow her to present evidence from after November 2021 to demonstrate ongoing effects of earlier discrimination, but only for determining appropriate remedies if she proves her case on the remaining allegations.
The ruling also addressed C.D.’s argument that she should not be bound by the FSA release because the settlement implied an obligation on CAF’s part to prevent further misconduct. The tribunal rejected this position, noting: “There is nothing in the release or the FSA to support the Complainant’s argument that she was not bound by the release if the Respondent failed to prevent further alleged Sexual Misconduct from occurring after the approval of the FSA.”
Disability ground remains unclear
C.D.’s expanded Statement of Particulars added disability as a ground of discrimination, relating to medical limitations she received for anxiety and depression. However, the ruling does not clearly address whether disability-based discrimination claims from the allowable time period can proceed.
The tribunal noted that allegations regarding her medical limitations and their effects on career progression “would primarily engage a different ground of discrimination” from her original gender identity claims.
Crown liability issue deferred
CAF raised the Crown Liability and Proceedings Act as a potential bar to the proceedings, noting that C.D. receives disability benefits from Veterans Affairs Canada related to her military service. The tribunal declined to rule on this issue, stating it could be addressed later if necessary.
For more information, see C.D. v. Canadian Armed Forces, 2025 CHRT 31 (CanLII).
