Bombardier refused training to a pilot born in Pakistan who
held a Canadian licence on the basis of a decision by the U.S.
authorities which denied security clearance. The plaintiff alleged
racial profiling. The highest court in Canada found that the
plaintiff failed to prove that the U.S. authorities' decision
was based on his ethnic or national origin.
Bombardier operates two training centres, in Montréal and
Dallas, where pilots can be trained to operate Bombardier aircraft.
The training is offered to pilots holding licences issued by
various authorities, including Canada and the United States. Mr.
Javed Latif, a Canadian citizen born in Pakistan, has been flying
airplanes since 1964 and held Canadian and U.S. pilot' s
licences. He registered for training at Bombardier. His request for
training was denied by Bombardier on the sole basis that he did not
receive security clearance from the U.S. authorities.
The plaintiff alleged that he was a victim of racial profiling
on the part of the U.S. authorities and that Bombardier acted as a
conduit for their decision. The Human Rights Tribunal agreed and
ordered Bombardier to pay damages to the plaintiff.
On appeal, the Supreme Court of Canada unanimously held that the
Tribunal' s decision was unreasonable as there was insufficient
evidence, either direct or circumstantial, to show that Mr. Latif
's ethnic or national origin had played any role in the U.S.
authorities' unfavourable reply to his security screening
request. A social context of discrimination against a group cannot
be relied upon as a presumption that a specific decision made
against a member of that group is necessarily based on a prohibited
discriminatory ground. In the Court's view, this would amount
to a reversal of the burden of proof.
In reaching its conclusion, the Supreme Court clarified the
notion of "prima facie" discrimination, which
corresponds to the first step in the analysis of any discrimination
complaint. If prima facie discrimination is found, the
employer then must prove that its decision was based on one of the
exemptions provided in applicable human rights legislation.
Writing for the Court, Wagner and Côté JJ.
reiterated that a plaintiff must prove three elements to satisfy
the prima facie test:
First, the plaintiff must prove the existence of differential
treatment, i.e. that a decision, measure or conduct affected him or
her differently from others.
Secondly, the plaintiff must establish that the differential
treatment (distinction, exclusion or preference) is based on one of
the prohibited grounds of discrimination. This implies a
"connection" between the differential treatment and a
prohibited ground. The Court specifies that a "causal
link" is not required. Rather, it must be shown that the
prohibited ground in question was a factor in the
distinction, exclusion or preference.
Lastly, the plaintiff must show that the distinction, exclusion
or preference affects the full and equal exercise of a right or
freedom guaranteed to him or her by the human rights
For the first time, the Court clarified that these elements must
be proven on a balance of probabilities, and not on the basis of a
more relaxed burden of proof despite the confusion that may be
created by the use of the expression "prima
facie" . The latter must be understood as referring to
the first step of the discrimination test and not as implying a
lesser burden of proof for the plaintiff.
Ultimately, the Court found that the evidence was lacking to
prove prima facie discrimination in this case because the
record did not support a conclusion that Mr. Latif' s ethnic or
national origin played any role in the U.S. authorities' denial
of security clearance. However, the Court noted that this does not
mean that a company can blindly comply with a discrimination
decision of a foreign authority. The outcome of future cases will
depend on the evidence that can be presented by plaintiffs to show
that the foreign authority' s decision was connected or linked
to a prohibited ground of discrimination. Such evidence may be
difficult to present as foreign authorities will not necessarily,
as in this case, disclose the reasons behind their decisions ,
particularly in matters relating to security.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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