The facts of Bombardier are somewhat unusual, and play a
significant role in the Supreme Court of Canada's final ruling.
Javed Latif was a Pakistani-born Canadian citizen who had been
flying planes since 1964, and had held a U.S. flight license since
1991. He obtained his Canadian flight license in 2004. After
accepting an aviation position by Bombardier in April 2004, for a
plane that he had not previously flown, Mr. Latif was surprised to
be told by Bombardier that his security screening request had been
denied by the U.S. authorities. Bombardier refused to give Mr.
Latif the training required under his Canadian license because of
the Department of Justice's refusals.
Mr. Latif filed a complaint with the Commission des droits de la
personne et des droits de la jeunesse, which then began proceedings
in a Human Rights Tribunal. The Tribunal ruled that Bombardier had
discriminated against Mr. Latif based on his ethnic or national
origins. The Tribunal also noted that several U.S. administrative
agencies had engaged in a trend of racial profiling against Arab or
other Muslim minorities. The Tribunal considered Mr. Latif's
security clearance refusal a part of that broader trend and issued
hefty penalties against Bombardier, including $25,000 in moral
damages, $50,000 in punitive damages, and close to $245,000 for
The Supreme Court unanimously reaffirmed the test for finding
prima facie discrimination:
there must be a distinction, exclusion, or preference;
the prohibited ground of discrimination must be connected or
been a factor to the distinction; and
the plaintiff must show how the distinction affects the full
exercise of their rights or freedoms as per the Charter.
If this prima facie discrimination is demonstrated by
the plaintiff, the burden shifts to the defendant, who can attempt
to justify their conduct.
The Supreme Court narrowed in on the second part of the
prima facie test, holding that Mr. Latif had not shown how
the prohibited ground of discrimination was connected to the
discrimination. The Supreme Court held that simply showing a trend
of racial discrimination without presenting evidence specific to
Mr. Latif's case was tantamount to reversing the onus.
However, the Supreme Court of Canada did reaffirm the old test
for discrimination, which clarified questions that some observers
had asked about the Quebec Court of Appeal decision. The Supreme
Court decision reaffirmed that discrimination must only be a
factor in, but not necessarily the cause of, a
refusal to deny employment or service.
So the Supreme Court,
while not accepting Mr. Latif's case on the facts, did not
alter the test for discrimination. On the other hand, potential
plaintiffs must be wary of attempting to present general trends of
racial discrimination in grievances against employers. Both
employers and employees should seek appropriate legal counsel
before evaluating their options.
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.
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