Canada: Bombardier To Pay Damages Under Quebec Human Rights Tribunal Decision

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.


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.


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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions