Commission des droits de la personne et des droits de la jeunesse v. Bombardier Inc. (Bombardier Aerospace Training Center), Javed Latif (Human rights – Discrimination)

On appeal from a judgment of the Québec Court of Appeal (2013 QCCA 1650), setting aside a decision of the Québec Human Rights Tribunal (2010 QCTDP 16).

Bombardier operates two centres, in Montréal and Dallas, at which pilots are trained on the types of aircraft it produces. This training is offered to pilots holding licences issued by various authorities, including Canada and the United States. Latif, a Canadian citizen born in Pakistan, held Canadian and U.S. pilot’s licences. In 2004, Latif registered for training at Bombardier’s Dallas centre under his U.S. licence. A security clearance from the U.S. authorities was requested for Latif in accordance with enhanced aviation security measures that had been implemented by the United States in the wake of the terrorist attacks of September 11, 2001. This request was denied. As a result, Latif could not receive the training from Bombardier under his U.S. licence. Bombardier also refused to train him at its Montréal centre under his Canadian licence. Being of the view that Bombardier’s refusal constituted discrimination against him, Latif filed a complaint with the Commission des droits de la personne et des droits de la jeunesse (“Commission”). After investigating, the Commission initiated proceedings in the Human Rights Tribunal in which it alleged that Bombardier had impaired Latif’s right to avail himself of services ordinarily offered to the public and his right to the safeguard of his dignity and reputation without discrimination based on ethnic or national origin, contrary to ss. 4, 10 and 12 of the QuébecCharter of human rights and freedoms.

The Tribunal agreed with the Commission, ordering Bombardier to pay damages to Latif. It also ordered Bombardier to cease applying or considering the standards and decisions of the U.S. authorities in national security matters when dealing with applications for the training of pilots under Canadian pilot’s licences. The Court of Appeal set aside the Tribunal’s decision on the basis that the Tribunal could not find that Bombardier had discriminated against Latif without proof that the U.S. authorities’ decision was itself based on a ground that is prohibited under the Charter.

Held (7:0): The appeals should be dismissed.

An application with respect to a complaint under the Charter involves a two‑step process that successively imposes separate burdens of proof on the plaintiff and the defendant. Whatever form discrimination takes, this two‑step analysis does not change. The fact that racial profiling is recognized as a prohibited form of discrimination does not therefore change this process. At the first step, s. 10 of the Charter requires that the plaintiff prove three elements: (1) a distinction, exclusion or preference, (2) based on one of the grounds listed in the first paragraph of s. 10, and (3) which has the effect of nullifying or impairing the right to full and equal recognition and exercise of a human right or freedom. If these three elements are established, there is “prima facie discrimination”. At the second step, the defendant can justify his or her decision or conduct on the basis of the exemptions provided for in the applicable human rights legislation or those developed by the courts. If the defendant fails to do so, discrimination will then be found to have occurred.

The first element of prima facie discrimination is not problematic: the plaintiff must prove the existence of differential treatment, that is, that a decision, a measure or conduct affects him or her differently from others to whom it may apply. As regards the second element, the plaintiff has the burden of showing that there is a connection between a prohibited ground of discrimination and the distinction, exclusion or preference of which he or she complains or, in other words, that the ground in question was a factor in the distinction, exclusion or preference. It is not essential that this connection be an exclusive one: for a particular decision or action to be considered discriminatory, the prohibited ground need only have contributed to it. Lastly, as to the third element, the plaintiff must show that the distinction, exclusion or preference affects the full and equal exercise of a right or freedom guaranteed to him or her by the Charter. The Québec Charter, unlike the Canadian Charter of Rights and Freedoms, does not protect the right to equality per se; this right is protected only in the exercise of the other rights and freedoms guaranteed by the Charter. The right to non‑discrimination cannot therefore serve as a basis for an application on its own and must necessarily be attached to another human right or freedom recognized by law.

The plaintiff must prove the three elements of prima facie discrimination in accordance with the standard of proof that normally applies in the civil law, namely that of proof on a balance of probabilities. In a discrimination context, the expression “prima facie” refers only to the first step of the process and does not alter the applicable degree of proof. The use of this expression can be explained quite simply on the basis of the two‑step test for complaints of discrimination under the Charter, and it concerns only the three elements that must be proven by the plaintiff at the first step. If no justification is established by the defendant, proof of these three elements on a balance of probabilities will be sufficient for the tribunal to find that s. 10 of the Charter has been violated. If, on the other hand, the defendant succeeds in justifying his or her decision or conduct, also in accordance with the standard of proof on a balance of probabilities, there will have been no violation, not even if prima faciediscrimination is found to have occurred. The defendant can therefore either present evidence to refute the allegation of prima facie discrimination, put forward a defence justifying the discrimination, or do both.

Because the Tribunal’s decision in this case was not supported by the evidence in the record, it was unreasonable and must be set aside. The Commission had to show that Bombardier’s decision was discriminatory by establishing on a balance of probabilities that there was a connection between the decision and Latif’s ethnic or national origin. Because Bombardier’s decision to deny Latif’s request for training was based solely on the U.S. authorities’ refusal to issue him a security clearance, proof of a connection between the U.S. authorities’ decision and a prohibited ground of discrimination would have satisfied the requirements of the second element of the test for prima facie discrimination. However, the Commission did not adduce sufficient evidence — either direct or circumstantial — to show that Latif’s ethnic or national origin had played any role in the U.S. authorities’ unfavourable reply to his security screening request. It 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. In practice, this would amount to reversing the burden of proof in discrimination matters. Evidence of discrimination, even if it is circumstantial, must be tangibly related to the impugned decision or conduct. As a result, it was not open to the Tribunal in this case to conclude that Bombardier’s decision constituted prima facie discrimination under the Charter. The 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. This conclusion flows from the fact that there is simply no evidence of a connection between a prohibited ground and the foreign decision in question.

English version of the judgment of the Court delivered by Wagner and Côté JJ.

Neutral Citation: 2015 SCC 39. Docket No. 35625