SUPREME COURT ON RACIAL/ETHNIC DISCRIMINATION IN EMPLOYMENT: A DEVASTATING LOSS FOR JAVED LATIF, BUT A MAJOR GAIN FOR ALL VICTIMS OF DISCRIMINATION

Montreal, July 23, 2015 — In a major decision released that will immediately affect hundreds of discrimination cases across in the country, the Supreme Court ruled that Bombardier did not discriminate against a Pakistani Canadian when it turned him down for training and eventually a pilot job after being listed by American authorities as a national security risk for the United States.

In Commission des droits de la personne et des droits de la jeunesse and Javed Latif c. Bombardier et al., Mr. Latif filed a complaint of ethnic discrimination and profiling against the Montreal-based Bombardier company, after being denied training (a part of which was to take place in Texas) because he was listed as a security threat by the U.S. government. As a result, Mr. Latif was denied employment and had problems finding work as a pilot.

He filed a complaint with the Quebec Human Rights and Youth Rights Commission, which upheld his case and brought it before the Human Rights Tribunal. In 2010, the Tribunal ruled in his favour and ordered Bombardier to pay him $315,000 in damages and to cease using U.S. national security screening criteria when dealing with Canadian applications for a pilot training license.

Bombardier appealed the ruling to the Quebec Court of Appeal, which quashed the Tribunal's decision in the fall of 2013. The Human Rights Commission obtained leave to appeal the Court of Appeal decision to the Supreme Court, seeking the latter’s clarification on a number of issues.

One of these issues is whether the Quebec Court of Appeal erred in requiring proof of a “causal connection” between the prohibited ground of ethnic origin and the discrimination experienced by the victim. Canadian jurisprudence on discrimination usually merely requires evidence that a prohibited ground, such as race or gender, was one of the factors in a discriminatory action or practice; this is a lower threshold to prove discrimination than that of “causal connection”.

In 2013, the Ontario Court of Appeal rejected a similar test in the ground-breaking racial profiling case of Peel Law Association v. Pieters. In that case, which involved the racial profiling of two Black lawyers (one of whom was prominent human rights lawyer Selwyn Pieters) and a student, two of whom had dreadlocks, the Ontario Court unanimously maintained a more liberal position and ruled against the lower Court’s requirement of a “causal nexus between the arbitrary distinction based on a prohibited ground and the disadvantage suffered.”

As the only Quebec intervener in the Bombardier case, CRARR calls for a “consistent, uniform and unequivocal evidentiary requirement for assessing discrimination claims … to guide all equality-seeking individuals and groups as well as all courts and tribunals in Quebec (and) in the rest of Canada.”

In its decision, the Supreme Court dismissed the Human Rights Commission and Mr. Latif’s appeal due to the lack of evidence of the link between his ethnic or national origin and the denial of training and employment. This means that after more than 10 years of fighting what he considered to be a case of discrimination, and after being awarded more than $315,000 in damages, Mr. Latif lost his case. As well, the Court awarded costs against the Human Rights Commission and Mr. Latif.

However, on the more fundamental issue of the burden of proof for discrimination cases, the Supreme Court provides what the Human Rights Commission and CRARR asked, namely, a more liberal and flexible standard of proof than what the Quebec Court of Appeal established.

“The Quebec courts have defined this causal relationship as requiring that the damage be a logical, direct and immediate consequence of the fault… A close relationship is not required in a discrimination case under the Charter, however. To hold otherwise would be to disregard the fact that, since there may be many different reasons for a defendant’s acts, proof of such a relationship could impose too heavy a burden on the plaintiff,” the Court stated in a unanimous 7-0 decision.

“The plaintiff has the burden of showing that there is a connection between a prohibited ground of discrimination and the distinction, exclusion or preference of which he or she complains or, in other words, that the ground in question was a factor in the distinction, exclusion or preference,” added the court.

“By rejecting the more conservative and restrictive requirement of a “causal link”, the Supreme Court has sent a clear and progressive signal to all courts, human rights commissions and victims of discrimination across Canada,” said Mr. Pieters, who acted as CRARR’s co-counsel in the case.

“It’s no doubt a devastating loss for Mr. Latif. We owe him a debt of gratitude for having, with his legal battle, lessened the burden of proof for victims of discrimination against the country and making it easier for them to combat inequality in every sector of Canadian life,” added Mr. Pieters.

According to CRARR’s co-counsel Aymar Missakila, “the Court’s decision will be beneficial to victims of discrimination in Quebec in particular because it has freed them from the restrictive “causal link” standard of proof. A new chapter has begun today in the history of human rights in Quebec.”

The decision also provides important legal clarifications of rules governing social context and civil law rule of evidence in discrimination claims. Finally, it also advises Canadian companies not to “blindly comply with a discriminatory decision of a foreign authority without exposing itself to liability under the [human rights] Charter.”