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Canada: Supreme Court Rejects Appeal of Pakistani Canadian Pilot in Discrimination Case

(July 30, 2015) On July 23, 2015, the Supreme Court of Canada rejected the appeal of a Pakistani Canadian pilot in a discrimination case filed against Bombardier, an aerospace company. (Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, Judgments of the Supreme Court of Canada website.)

Case History

In 2004, Javed Latif, who held both a U.S. and a Canadian pilot’s license, applied for training at Bombardier’s pilot training center located in Dallas, Texas, under his U.S. license. The security clearance needed was not granted by American authorities, however, and Latif was refused the training. Latif then applied at Bombardier’s Montreal center, using his Canadian pilot’s license. This request was also denied by Bombardier, which based its decision on that of the U.S. authorities without knowing the motivation behind their decision. (Id. ss. 5-15.)

Latif filed a complaint with the Commission des droits de l’homme et de la jeunesse (Commission for Human Rights and for Youth), citing racial discrimination by Bombardier. (Id. s. 18). The Commission initiated proceedings on behalf of Latif in the Human Rights Tribunal, under various sections of the Quebec Charter of Human Rights and Freedoms (COMPILATION OF QUEBEC LAWS AND REGULATIONS, c. 12 (updated to July 1, 2015), PUBLICATIONS QUEBEC); the Tribunal sided with Latif and granted him damages of about CA$320,000 (about US$247, 450). (Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), ss. 20-25.) The Human Rights Tribunal is a specialized Quebec tribunal that has jurisdiction over discrimination and harassment complaints brought under the Charter of Human Rights and Freedoms. (Ann-Marie Jones, The Human Rights Tribunal, Justice Quebec website (June 25, 2015).)

On appeal, the Quebec Court of Appeal rejected the decision of the Tribunal, stating the lack of sufficient proof of racial discrimination on the part of the U.S. government. Without proof of discrimination by American authorities, in the Court’s view, it was impossible to find such discrimination in the Montreal Bombardier center’s similar refusal of Latif’s application. (Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), ss. 26-27.)

The Supreme Court of Canada’s Ruling

The seven justices present on the Supreme Court bench, in a unanimous ruling, rejected Latif’s appeal, explaining that there was no sufficient proof of discrimination based on race. The justices opined that it had not been shown on a balance of probabilities that there was a connection between a prohibited ground of discrimination and Bombadier’s decision to deny the individual’s training request. (Id. s. 98.)

Explanation of Establishment of Discrimination

The Court explained the two-step process needed to establish that discrimination has occurred under section 10 of the Quebec Charter. First, the plaintiff must prove that there was “prima facie” discrimination, by: 1) establishing “a distinction, exclusion or preference” in the way he was treated; then 2) establishing that this treatment is based on one of the specific grounds listed in section 10, paragraph 1; and finally 3) proving that the discrimination, exclusion, or preference resulted in the nullification or impairment of “the right to full and equal recognition and exercise of a human right or freedom.” (Id. ss. 42-54.) These three elements of prima facie discrimination need to be established according to a standard of proof on “a balance of probabilities.” If the defendant has freed itself from this burden of proof, the Court proceeds to the next step. (Id. ss. 56 & 64.)

The second step, the Court stated, is to shift the burden of proof onto the defendant, who can either put forth evidence contradicting the accusation of discrimination, or justify its allegedly discriminatory decision or conduct according to the various acceptable exceptions provided by the law. Failure to fill this obligation will result in the discrimination being recognized. (Id. s. 64.)

Rejection of Tribunal Decision

The Supreme Court ruled that the Tribunal’s decision was unreasonable and that there was insufficient proof to determine that discrimination had occurred. (Id. s. 73.) The Commission failed to demonstrate that there was a connection between the Bombardier decision and Latif’s ethnicity, the justices stated. In order to establish this connection, A it would have sufficed to prove that the exclusion by American authorities had been motivated by Latif’s ethnicity. (Id. s. 80.) The Court also pointed out, “[i]t cannot be presumed solely on the basis of a social context of discrimination against a group that a specific decision against a member of that group is necessarily based on a prohibited ground under the Charter.” (Id. s. 88.)

Nevertheless, the Supreme Court cautioned Canadian companies that its decision did not allow them to follow discriminatory decisions taken by foreign entities:

However, we wish to make it clear that our conclusion in this case does not mean that a company can blindly comply with a discriminatory decision of a foreign authority without exposing itself to liability under the Charter. Our conclusion flows from the fact that there is simply no evidence in this case of a connection between a prohibited ground and the foreign decision in question. (Id. s. 99.)

Prepared by Julia Heron, Law Library Intern, under the supervision of Tariq Ahmad, Senior Legal Research Analyst.