What is the test for finding discrimination in Canadian law? This important question for both employers and employees was recently answered in the Supreme Court of Canada's ruling in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center) ("Bombardier").

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 material prejudice.

The Supreme Court unanimously reaffirmed the test for finding prima facie discrimination:

  1. there must be a distinction, exclusion, or preference;
  2. the prohibited ground of discrimination must be connected or been a factor to the distinction; and
  3. 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.