Bombardier Inc. (“Bombardier”), the Montreal based aerospace company, operates two aerospace training centers – one in Montreal and the other in Dallas, Texas - at which pilots are trained on the types of aircraft produced by Bombardier. Bombardier holds a training certificate from the US Federal Aviation Administration under which it is authorized to provide the necessary training to pilots holding US licenses.
Almost immediately after the terrorist attacks of September 11, 2001, the United States implemented enhanced security measures. Such measures included enacting, in November of 2001, the Aviation and Transportation Security Act (the “Act”). The Act required that any organization (including Bombardier) wishing to provide pilot training to an individual who was not a US citizen, submit the individual’s name to US authorities for security screening: Screening of Aliens and Other Designated Individuals Seeking Flight Training. The security training was carried out by the US Department of Justice (“DOJ”) until the end of September 2004. At that time, the United States passed even stricter security screening requirements and transferred control over screening to the Department of Homeland Security.
Canada did not adopt similar measures with respect to the training of pilots holding Canadian licenses.
The plaintiff in this case, Javed Latif (“Latif”), was a Canadian citizen but was born in Pakistan. Latif had been flying airplanes since 1964. He had held a US pilot’s license since 1991 and a Canadian pilot’s license since 2004. He had an unblemished career record and had taken many training courses from Bombardier.
In 2003, Latif was offered employment flying a Boeing 737 under his US license. He registered for training and in October of 2003 the DOJ issued him a security clearance. He took his training in the US and was certified in December of 2003. Unfortunately, the job opportunity fell through.
In January of 2004, at a time when he was unemployed, Latif accepted a friend’s offer to go to Pakistan to participate in a real estate project. In March of 2004, while he was still in Pakistan, he received an offer from a Canadian company to pilot a Bombardier aircraft.
Latif initially registered for training on this new aircraft under his US license at Bombardier’s Dallas training center. Because he was in Pakistan there was a delay so that Latif, then asked the Canadian company to register him for training under his Canadian license.
In April of 2004, the Canadian company informed Latif that Bombardier had received an unfavourable reply to his security screening request from the US. No explanation for the refusal was provided at that time. Latif then checked with Bombardier who also refused to provide him with training under his Canadian license based solely on the fact that DOJ had not issued Latif a security clearance.
When Latif wrote to the US authorities, he was advised that: “The denial decision was made after extensive analysis of the data received. This process is in place to protect the national security of the US. There is no appeals process for non-US citizens.”
Latif filed a discrimination complaint against Bombardier with Quebec’s Commission des droits de la personne et des droits de la jeunesse (“Commission”). After investigating, the Commission initiated proceedings in the Quebec Human Rights Tribunal (“Tribunal”). At the Tribunal, the Commission alleged, among other things, 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 sections 4, 10 and 12 of the Quebec Charter of human right and freedoms” (“Charter”).
The Tribunal ordered Bombardier to pay damages to Latif. 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 licenses.
The Quebec government appealed to the Quebec Court of Appeal which 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 US authorities’ decision was itself based on a ground that was prohibited under the Charter.
Latif’s appeal to the Supreme Court of Canada was dismissed.
In dismissing the appeal, the Supreme Court agreed with the Court of Appeal that Latif could not prove on the balance of probabilities that the US authorities’ refusal to issue him a security clearance was based on a prohibited ground of discrimination under the Charter. The SCC held that the Commission had not adduced sufficient evidence – either direct or circumstantial – to show that Latif’s ethnic or national origin had played any role in the US authorities’ unfavourable reply to his security screening request. The Supreme Court held that it could not 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 was necessarily based on a prohibited ground under the Charter. It held that this, in practice, would amount to reversing the burden of proof in discrimination cases. The Supreme Court held that evidence of discrimination, even if it is circumstantial, must be tangibly related to the impugned decision or conduct.
As for the process, the SCC held that 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. At the first step, the Charter requires that the plaintiff prove a distinction or exclusion based on one of the grounds listed in the first paragraph of the Charter which has the effect of nullifying or impairing the right to full and equal recognition in exercise of a human right or freedom. If the elements comprising the first step are established, then there is “prima facie discrimination”. At the second step, the defendant (Bombardier) can seek to justify his or her decision or conduct on the basis of the exemptions that are provided for in the applicable human rights legislation or developed by the courts.
The Court emphasized however, that the evidence of discrimination must be adduced on the standard of proof that normally applies in civil law cases, namely proof on a balance of probabilities.
This case is indexed as Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. 2015 SCC 39