Copyright 2011, Blake, Cassels & Graydon LLP
Originally published in Blakes Bulletin on Labour & Employment, February 2011
The impact of U.S. policies designed to increase aviation and national security in the aftermath of the September 11, 2001 terrorist attacks in the U.S. does not stop at the Canada–U.S. border.
A November 29, 2010 decision of the Quebec Human Rights Tribunal in Commission des droits de la personne et droits de la jeunesse c. Bombardier Inc. (Bombardier Aerospace Training Center) provides an example of Canadian tribunals facing the thorny task of determining the legal ramifications under Canadian law when certain U.S. policies impact Canadian citizens. That decision held that Bombardier discriminated against a pilot who is a citizen of both Canada and Pakistan, on the basis of his ethnic or national origin when it refused to provide him flight training at the Bombardier Aerospace Training Center (BATC) under his Canadian pilot's licence on the grounds that he had been denied security clearance by U.S. authorities for the same training applied for under his American pilot's licence.
Mr. Latif is an airline pilot with over 25 years of experience. Born in Pakistan and a Muslim, he became a Canadian citizen in 1997. In 2004, he was offered a job by an airline carrier piloting the Challenger 604 airplane. The applicable regulatory regime required that he be trained on that particular aircraft to be able to perform the job. He held both a Canadian and American (Federal Aviation Authority) pilot's licence and originally applied to BATC for training under his American pilot's licence. BATC is authorized by U.S. authorities to provide such training at its Montreal facilities to pilots with American licences. BATC also provides training to pilots holding Canadian and other countries' pilot licences.
Following the September 11, 2001 attacks, the U.S. instituted the Alien Flight Student's Program which mandated security clearance from the U.S. Department of Justice for non-U.S. citizens seeking training under an Federal Aviation Authority licence. The American screening process concluded that the pilot presented a security threat and thus he was not given clearance for the training under the U.S. licence. The surprised pilot then requested that Bombardier provide the training under his Canadian pilot's licence, which did not require a screening process under Canadian law. Notwithstanding that the request for training was then being pursued under his Canadian licence, Bombardier refused to train Mr. Latif on the grounds that the company had to submit to the American decision and that he could only be trained if the U.S. authorities granted him clearance. Bombardier defended its decision, arguing that the refusal was justified in the circumstances on security and economic grounds.
The complaint was framed mainly pursuant to sections 10 and 12 of the Charter of Human Rights and Freedoms (Charter) which prohibit discrimination on the basis of national origin or ethnicity in the provision of goods or services that are ordinarily offered to the public.
The Tribunal accepted the expert evidence of a law professor on the subject of racial profiling who testified that various American security measures post-September 11, 2001 constituted racial profiling in respect of Arabs and Muslims. The Tribunal found that, in the absence of any direct proof of discrimination, it could be presumed from the expert evidence that the pilot's ethnic or national origin was behind the determination that he posed a security risk and concluded that there was a prima facie case of discrimination.
Though the reason that U.S. authorities determined that the pilot posed a security threat was not disclosed, the pilot believed he was the victim of mistaken identity. Without explanation, in 2008, the U.S. authorities dropped their refusal to grant him clearance and he ultimately obtained the training.
FINDINGS OF THE TRIBUNAL
The Tribunal found that Bombardier's decision to refuse to train Mr. Latif under his Canadian pilot's licence was based uniquely on the consideration of the U.S. Department of Justice and the Transportation Security Administration/Department of Homeland Security, which had refused to train him under his U.S. licence. Bombardier had thus relied entirely on the American authorities and their credibility to decide that the pilot constituted, even in Canada, a threat to aviation safety. The decisions made by the American authorities were motivated by the control measures put in place after the 2001 attacks to prevent terrorism. There was a direct link between the training of pilots and the goals of these programs and, in light of the expertise on racial profiling, the evidence demonstrated that the measures adopted in respect of aviation, which were applied only to non- American citizens, affected, to a greater extent, persons originating from Muslim countries, such as Pakistan. The Tribunal concluded that the evidence, expert evidence in particular, demonstrated that Bombardier had made a distinction or an exclusion based on ethnic or national origin which infringed Mr. Latif's right to equality in the exercise of his rights pursuant to Quebec's human rights legislation.
In finding in favour of the pilot, the Tribunal rejected Bombardier's arguments that security considerations and economic factors provided a legal justification for its decision.
AWARD OF THE TRIBUNAL
The Tribunal awarded the complainant compensatory damages in the amount of US$309,798 (less approximately C$66,000 he had earned) mitigating for lost wages for the employment contracts that he had had to refuse because he could not obtain the required training, and moral damages in the amount of C$25,000 in part based on the length of time that he had been deprived of his right to receive the training services and his right to freely chosen employment.
In a landmark finding, the Tribunal awarded $50,000 as punitive damages – the goal of which is to act as a deterrent for society as a whole. Pursuant to the Charter, an award of punitive damages is appropriate only when the breach of the person's rights is unlawful and intentional. The amount was considered appropriate in light of the gravity of the infringement of his rights, the gravity of the damage caused, the financial means of the author of the discrimination which is a multinational company, and the need to deter such conduct by awarding these type of damages.
Finally, the Tribunal ordered Bombardier to cease and desist from applying or considering the American authorities' standards and decisions in respect of "national security" when it is processing training requests for pilots who have a licence from Canada or any country other than the United States.
Aside from being a landmark finding in respect of punitive damages awarded in human rights cases, this decision demonstrates that Canadian companies that are subject to U.S. security standards in the pursuit of their businesses must take great care to evaluate the impact of such standards on Canadians in order to ensure compliance with Canadian laws. It will be interesting to watch for further developments from our tribunals and, possibly, legislators.
Bombardier will seek leave to appeal the decision from the Quebec Court of Appeal this month.
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