A recent Supreme Court of Canada case, Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc (Bombardier Aerospace Training Centre), 2015 SCC 39, provides guidance on the complainant’s burden of proving discrimination. The case law on discrimination provides for a two-step process: the complainant’s burden of making out a prima facie [at first appearance] case of discrimination, followed by the respondent’s burden of justifying its actions. According to the SCC, the confusion stems from the use of the term “prima facie”, which does not lower the burden of proof. The case also demonstrates how difficult it is for complainants to effectively prove the claim they have been denied something on the grounds of “national security”.
Javed Latif, a Canadian citizen born in Pakistan, held both Canadian and United States (U.S.) pilot’s licences. In 2003, Mid East Jet offered Latif work flying a Boeing 737 under his U.S. licence. He registered for training and was issued a U.S. security clearance in 2003. Unfortunately, this job opportunity fell through, but he received another offer from ACASS Canada Ltd to pilot a Bombardier Challenger 604 aircraft. He again applied for training under his U.S. licence at Bombardier’s Dallas training centre. There was another required security clearance from the U.S. Department of Justice. This time, there was a delay in receiving the clearance, partly because the U.S. has passed stricter requirements in 2004. Because he did not want to lose the job opportunity, Latif registered for training under his Canadian licence.
In April 2004, Latif was informed that Bombardier has received an unfavourable reply to his security screening request from the U.S., which meant he could not receive training there. No explanation was provided for the denial, but Latif thought it must be due to an identification error. Because Latif was denied security clearance in the U.S., Bombardier refused to provide him training under his Canadian licence.
Latif complained to the Quebec Commission des droits de la personne et des droits de la jeunesse (“Commission”) that Bombardier had discriminated against him on the grounds of ethnic or national origin. Quebec’s Human Rights Tribunal addressed the burden of proof and said that the burden was on the Commission to prove the following three elements on a balance of probabilities:
- a distinction, exclusion or preference;
- based on one of the grounds listed in the legislation;
- which has the effect of nullifying or impairing the right to full and equal recognition and exercise of a human right or freedom.
The Tribunal held that the refusal to train Latif under his Canadian licence was not directly dependent on his Pakistani origin, but The SCC held the central issue was whether the complainant had established that the discrimination was based on one of the grounds listed in the human rights legislation. on the refusal of the U.S. authorities to give him security clearance. The Tribunal had considered an expert report filed by the Commission indicating that since September 11, 2001, several U.S. agencies had engaged in racial profiling against people of Arab origin, Muslims or people from Muslim countries. The Tribunal held that the U.S. authorities’ decision about Latif had been made in that context and thus constituted discrimination based on ethnic or national origin and had the effect of nullifying or impairing the full recognition and exercise of his rights. Thus, Latif was successful at the Tribunal level.
The Quebec Court of Appeal disagreed with the Tribunal, and held that the Commission had not shown a causal connection between Latif’s exclusion and a prohibited ground. While a connection might be proven through circumstantial evidence or presumptions, there was no such proof in this case. Because Bombardier’s decision had been based solely on the decision of the U.S. authorities, the Tribunal could not find that Bombardier had discriminated against Latif without proof that the decision was itself based on a ground that is prohibited under human rights law.
The Supreme Court of Canada (SCC) noted that the case raised three issues:
- What is ‘prima facie’ discrimination, and what degree of proof is required in order to establish it?
- Has prima facie discrimination on Bombardier’s part been proven?
- Was the mandatory order against Bombardier justified?
The SCC held the central issue was whether the complainant had established that the discrimination was based on one of the grounds listed in the human rights legislation. The Court held that it was not enough that the prohibited ground played a role in the discrimination, but rather that there needed to be a “connection” between the prohibited ground of discrimination and the impugned decision. The SCC held that: “…the plaintiff has the burden of showing that there is a connection between a prohibited The SCC held that social context evidence of racial profiling of a particular group was not itself sufficient to presume that a specific decision against a member of that group was necessarily based on a prohibited ground under human rights law.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.” [emphasis original]. ….
The SCC also noted that it had never clearly stated the degree of proof of discrimination associated with the complainant. The SCC clarified that the use of the term “prima facie discrimination” refers only to the first step of the process but does not alter the degree of proof required. It is not a relaxation of the complainant’s obligation to satisfy the tribunal on a balance of probabilities of the connection between the prohibited ground and the decision.
The SCC concluded that the Tribunal’s decision was unreasonable, and thus must be set aside. The parties agreed that Bombardier’s decision to deny Latif’s request for training was based solely on the fact he had not received security clearance from the Department of Justice to receive training under his U.S. licence. Further, the Commission had not adduced sufficient evidence to show that Latif’s ethnic or national origin played any role in the unfavourable reply to his security screening request. The evidence adduced at the hearing was not sufficient to support an inference of a connection between Latif’s ethnic or national origin and his exclusion. Thus, the Tribunal’s finding of fact on this issue was unreasonable.
The SCC held that social context evidence of racial profiling of a particular group was not itself sufficient to presume that a specific decision against a member of that group was necessarily based on a prohibited ground under human rights law.
The SCC noted that its conclusion in this case did not mean that when a company is caught in a conflict between foreign and Canadian laws, it can blindly comply with a discriminatory decision of a foreign authority without exposing itself to liability under human rights law.
This case also demonstrates the difficulty of proving whether the motives of another country were discriminatory, especially if the basis for the decision is stated to be “national security”. The SCC decision appears to relegate adverse effect discrimination to the back burner, because it is fairly clear that the U.S. policy did have an adverse effect on people of certain ethnic origins or religious affiliations. Mr. Latif testified that four of the five candidates who were refused security clearance by the U.S. authorities were from Arab or Muslim countries.
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