Canada: Foreign Laws Create Human Rights Headaches For Canadian Employers

The reality of the global economy is that business decisions are frequently made based on factors from both inside and outside Canada's borders. Employers in industries that may be subject to foreign laws, regulations or decisions can face real challenges if those factors affect their Canadian legal obligations, particularly when it comes to human rights issues.  Throw in some uncertainty when a foreign decision is based on unknown security threats, and it can be a recipe for a long legal struggle.

Bombardier Inc. (Aerospace Training Centre) ("Bombardier") faced this issue, and over a decade of human rights proceedings, when it refused to train Javed Latif, a Canadian citizen who was born in Pakistan. Ultimately, the Supreme Court of Canada sided with Bombardier and held that Mr. Latif had not been discriminated against on the basis of his ethnic or national origin, as he had alleged, in Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc (Bombardier Aerospace Training Centre).  The Court's unanimous decision, although siding with the employer, contains a number of cautions to employers in similar situations.

Mr. Latif's human rights complaint began after he attempted to train with Bombardier to operate a Bombardier Challenger 604 ("CM604"). Mr. Latif had flown planes since 1964, and had obtained his U.S. pilot's license in 1991 and his Canadian licence in 2004.  When he was offered a job flying the CM604, he first applied to train in Bombardier's Dallas centre, under his U.S. license.  That application process was delayed waiting for security clearance, so in March 2004 Mr. Latif tried to register for the training under his Canadian licence at Bombardier's facility in Montreal.

In April 2004, Mr. Latif was informed that the U.S. Department of Justice ("DOJ") had refused his security screening request, despite his forty years of flying experience. DOJ provided no explanation for the refusal. When Mr. Latif followed up on his training request with Bombardier in Canada, he was told that Bombardier could not train him under his Canadian licence, either, since it had to comply with DOJ's decision on security.

After further probing, Mr. Latif was told by DOJ that his application had been denied on the ground that he posed a threat to aviation or national security in the United States. Mr. Latif made numerous requests for his file to be reviewed by the U.S. authorities, as well as requests to be trained on other types of aircraft. All his applications were refused until 2008, when DOJ finally lifted the prohibition on Mr. Latif's training, again, without providing reasons.

These tightened security measures in the U.S. had been implemented following the terrorist attacks on September 11, 2001, and Mr. Latif concluded that the denial of security clearance was based on racial profiling, since he was born in Pakistan. He filed a complaint with the Commission des droits de la personne et des droits de la jeunesse in Quebec (the "Commission") and, after an investigation, the Commission began proceedings at the Human Rights Tribunal on the basis that Bombardier's refusal to provide Mr. Latif with pilot training violated his right to freedom from discrimination based on ethnic or national origin, under the Charter of Human Rights and Freedoms (the "Charter"). Mr. Latif was successful at the Tribunal, which awarded an unprecedented $320,000 in damages and ordered Bombardier to stop applying and considering the standards and decisions of the U.S. authorities.

On appeal by Bombardier, the Quebec Court of Appeal set aside the Tribunal's decision on the basis that there was no proof of a connection between the decision to deny training and the alleged prohibited ground of discrimination. Mr. Latif appealed the Court of Appeal's decision.

In a unanimous judgment, the Supreme Court of Canada dismissed the appeal and held that there was no evidence that Mr. Latif had been discriminated against on the basis of his ethnic or national origin. The Court emphasised that the burden of proof remains on the complainant/plaintiff to prove all three elements of a prima facie case of discrimination, those elements being:

  1. A distinction, exclusion or preference;
  2. Based on one of the listed prohibited grounds;
  3. Which has the effect of nullifying or impairing the right to full and equal recognition and exercise of a human right or freedom.

If these elements are met, a prima facie case of discrimination is established. Only then does the burden of proof shift to the respondent/defendant to justify the conduct through exemptions or defences.

Mr. Latif failed on the second element of the test, because he did not prove that a prohibited ground – in this case, ethnic or national origin – played a role in Bombardier's refusal to provide training. Clarifying the test for this second element, the Court held that a complainant must show that there is a connection between a prohibited ground of discrimination and the distinction, exclusion or preference or, in other words, that the ground in question was a factor in the distinction, exclusion or preference.

The Court criticized the Tribunal's conclusion that the U.S. authorities' decision stemmed from measures targeting people from Muslim countries, including Pakistan. The Court held that the Tribunal's ruling was unreasonable, since the expert evidence it relied heavily upon "dealt only with the Islamophobic social context in the United States and with government programs other than the [security screening program, which did] not support the Tribunal's inference." In short, the Supreme Court could find neither direct nor circumstantial evidence from which it could infer that Mr. Latif's ethnic or national origin played any role in DOJ's unfavourable reply to his security screening request.

Despite this positive finding for Bombardier, the Supreme Court of Canada was also careful to warn employers that they cannot simply defer to a decision from foreign authority in order to justify a breach of human rights. The Court stated that its decision "does not mean that a company can blindly comply with a discriminatory decision of a foreign authority without exposing itself to liability".

Employers with operations affected by laws, regulations or decisions from other jurisdictions therefore must be careful to balance their extra-territorial obligations with their duty to accommodate and otherwise comply with Canadian human rights laws. Accepting foreign decisions indiscriminately may not withstand a human rights challenge.

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