On July 23, 2015, the Supreme Court of Canada rendered a decision involving issues of both discrimination and national security (Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Aerospace Training Center, 2015 SCC 39). This decision clarifies the analytical process that a complainant must follow and the evidentiary threshold he or she must meet to prove that the complainant was discriminated against as contemplated by Quebec’s Charter of human rights and freedoms (the “Charter”), despite the evidentiary difficulties entailed by national security measures.
Javed Latif (“Latif”) is a Canadian citizen who was born in Pakistan, a predominantly Muslim country. In 2005-2005, he was an airline pilot holding both Canadian and U.S. pilot’s licences. Like every pilot, he had to be specifically trained for whatever aircraft he was going to fly, before he could begin piloting it. Bombardier Inc. (“Bombardier”), a company in the aeronautical industry, was authorized to provide such training to both Canadian and U.S. pilots.
Following the events of September 11, 2001, the United States created the Alien Flight Students Program (the “AFSP”) under which pilots who were not American citizens could be trained by an authorized training provider, provided they underwent security screening.
In 2003, the AFSP approved Latif’s request for certification. In 2004, in order to receive U.S. authorized training from Bombardier to fly a different aircraft, he again needed to obtain certification from the AFSP, which this time was denied, on the basis that the security check had turned up facts that led U.S. authorities to conclude that he posed a threat to national security. Neither the procedure followed nor the basis for the decision was ever explained to him. Latif accordingly requested Bombardier to provide him with the requisite training pursuant to its Canadian authorization. Basing itself on the AFSP’s decision, Bombardier refused to do so.
In 2007, the Commission des droits de la personne, Quebec’s human rights commission (the “Commission”) instituted proceedings against Bombardier alleging discrimination based on ethnic origin. In 2008, the AFSP lifted the prohibition on Latif’s U.S. training. It was apparently a case of mistaken identity.
Decision of the Human Rights Tribunal
On November 29, 2010, the Quebec Human Rights Tribunal decided in favour of Latif: Bombardier’s refusal to provide him with the requested training was discriminatory. The Tribunal considered that the Commission had discharged its burden of adducing evidence of prima facie discrimination under sections 10 and 12 of the Charter. The justifications advanced by Bombardier, which were based on security and economic considerations, were rejected by the Tribunal.
In concluding that discrimination had occurred, the Tribunal based itself on the report of an expert in racial profiling. That report examined certain U.S. programs implemented since September 11, 2001 as part of the war on terrorism, that targeted people of Arab origin or from Muslim countries. It described the discriminatory prejudice against such people that permeated American society and concluded that racial profiling was ineffective in furthering national security.
The Tribunal ordered Bombardier to pay compensation to Latif, as well as moral and punitive damages. It also ordered Bombardier to “cease applying or considering the standards and decisions of the US authorities in ‘national security’ matters when dealing with applications for the training of pilots under Canadian pilot’s licences”.
The Court of Appeal’s decision
The Court of Appeal overturned the Tribunal’s decision. In its view, the Commission had not succeeded in proving that Latif had been discriminated against, as it had failed to establish a causal link between Bombardier’s decision (refusal to provide training) and the prohibited ground (Latif’s Pakistani origin).
On the one hand, the Court questioned the relevance of the expert’s report, as it did not identify any significant, precise and corroboratory facts that could give rise to a presumption of racial profiling targeting Pakistanis on the part of the AFSP. In the Court’s view, the inference drawn by the Tribunal from the report was not sufficient to establish a causal link.
On the other hand, the Court of Appeal was of the view that the Tribunal’s order that Bombardier stop taking American national security decisions into consideration was unreasonable. While the Tribunal does have the authority to order something be done or not done, such an order must remedy a problematic situation. The Tribunal is not empowered to control Bombardier’s future conduct in national security matters.
Finally, the Court of Appeal was of the view that Bombardier, in relying on information received from US authorities, did not thereby commit an unlawful and intentional act justifying an award of punitive damages.
Decision of the Supreme Court of Canada
In a unanimous decision, the Supreme Court upheld the Court of Appeal’s decision. In particular, it reiterated the steps a complainant must take when making a complaint of discrimination, and the degree of proof required when determining whether discrimination actually occurred.
The Court first of all noted that section 10 of the Charter requires the complainant to prove the three following elements to establish prima facie discrimination:
- a distinction, exclusion or preference;
- based on one of the grounds listed in the first paragraph of that section;
- which has the effect of nullifying or impairing the right to full and equal recognition and exercise of a human right or freedom.
With respect to the second constitutive element of prima facie discrimination, the Supreme Court determined, contrary to the Court of Appeal, that the complainant has the burden of demonstrating a link (but not a causal link) between a prohibited ground of discrimination and the first element of the analysis (a distinction, exclusion or preference).
In addition, the Court specified the degree of proof inherent in the complainant’s evidentiary burden. The Court endorsed Bombardier’s arguments in this regard, concluding that the complainant must show, on a balance of probabilities, that the three constitutive elements of discrimination are present.
As for the defendant in such a proceeding, it can present (i) evidence refuting the allegation of discrimination, (ii) grounds of defence justifying the discrimination, or (iii) both. In the absence of any justification on the part of the defendant, if the complainant can show on a balance of probabilities that he or she was discriminated against, that will suffice for the Court to conclude that section 10 of the Charter was contravened.
In this case the Court found that the Tribunal’s decision was unreasonable because it was not based on the evidence on file. As mentioned above, the Commission had to show that Bombardier’s decision was discriminatory, by establishing on a balance of probabilities a connection between that decision and Latif’s ethnic origin. The evidence, however, did not allow of the conclusion that the decision of the US authorities was based on Latif’s ethnic origin.
A caveat was however issued to businesses: the Court stated that a company cannot “blindly comply with a discriminatory decision of a foreign authority without exposing itself to liability under the Charter”. In other words, employers cannot simply close their eyes and base themselves on a foreign standard that is clearly contrary to the Charter.
As for the Tribunal’s order that Bombardier cease applying the decisions of US authorities, the Court specified that the issuance of such an order must have a connection with the dispute submitted to the Tribunal, be supported by the relevant evidence and be appropriate in light of all the circumstances, which was not the case in this instance.
This decision is relevant to any dispute involving discrimination, as it confirms the burden of proof that complainants must meet. It accordingly allows defendants (who are often employers) to determine the nature of the evidence they must lead to refute complaints of this nature.
The decision is also relevant for employers and service providers who rely on foreign standards in connection with their hiring practices. In this regard, subject to an argument by the employer to the effect that the discrimination is a bona fide occupational requirement (“BFOR”), a person who is denied employment will need to prove that the decision of the foreign authority is discriminatory under the Charter. If that is the case, the employer or service provider that relied on that decision will be found liable.
It may be difficult to establish that the decision of the foreign authority was discriminatory, as relevant information is often unavailable. This is all the more so in cases involving national security, where the underlying information is almost never disclosed by the authorities concerned.
For example, certain employers must sometimes comply with the International Traffic in Arms Regulations of the United States. A candidate denied employment in that context must establish, in order to prove that his denial of employment was discriminatory, that the decision of the foreign authority was discriminatory. On the other hand, employers concerned may also justify such discrimination by establishing that successfully undergoing foreign screening is a BFOR as contemplated by section 20 of the Charter.