Canada: Supreme Court Of Canada Dismisses Appeal Of Pilot In Discrimination Action Against Bombardier

Last year, we posted an update about the Supreme Court of Canada's decision to hear an appeal involving Mr. Latif, a Canadian pilot of Pakistani descent.  He alleged that he was a victim of discrimination when Bombardier refused him entry into a pilot training program.  Our blog post (which includes a summary of the case) can be found here.

In short, Mr. Latif, who had 25 years' experience as a pilot, applied for Bombardier's training program in respect of a particular aircraft.  Based on a prior decision of the U.S. Department of Justice (under its Alien Flight Student Program ("AFSP")) to refuse him entry into Bombardier's training centre in Dallas, Texas on the basis that he was a threat to national security, he was also denied entry by Bombardier into its Montreal training centre.  Despite there being no similar Canadian screening process, Bombardier advised that it was required to follow the U.S. decision in order to comply with its flight training certificate issued by the U.S. Federal Aviation Administration.

Although the U.S. authorities eventually reversed their decision, Mr. Latif brought an application to the Quebec Human Rights Tribunal, arguing that Bombardier had discriminated against him in denying him entry into the Montreal program.  The Tribunal agreed, basing its decision largely on the evidence of an expert witness who stated that the U.S. government had engaged in racial profiling against Muslims and persons of Arabic descent in numerous post-9/11 anti-terrorism programs.  The Tribunal felt that the AFSP was such a program, and that it was discriminatory for Bombardier to have followed the U.S. decision without knowing its basis.  It awarded Mr. Latif approximately $300,000 in damages and held that Bombardier was prohibited from relying on U.S. decisions in matters of national security when considering applicants to its Canadian program.

The Quebec Court of Appeal overturned this decision, finding there was no evidence that the U.S. decision was the result of racial profiling or discrimination.  Mr. Latif appealed to the Supreme Court of Canada.

In July 2015, in reasons found here, the Supreme Court dismissed Mr. Latif's appeal.  The Court agreed with the Court of Appeal that Mr. Latif had failed to adduce sufficient evidence that his ethnic or national origin was at least a contributing factor in the U.S. decision, which was a requirement to establish discrimination under Quebec's human rights legislation.

The Court found that, at best, the expert report relied on by the Tribunal (which did not even mention the AFSP as one of the programs in which racial profiling existed) showed that, at the time, "there was a social climate in which racial profiling was generalized for national security purposes as a result of the terrorist attacks on September 11, 2001, and that racial profiling was practised in certain U.S. government programs".  It could not be presumed solely on the basis of a social context of discrimination against a group that a specific decision against a member of that group was necessarily based on a discriminatory ground.

The Court found that there was no other evidence supporting a connection between the decision and Mr. Latif's ethnic or national origin, noting in particular that the U.S. government had been aware of his country of origin in 2003 when it had granted him entry into the program (for other training which he did not pursue).  It also noted that Mr. Latif had testified that he was told by an official with the U.S. Transportation Security Administration that the decision had been the result of an identification error, not his country of origin.

With respect to the order made by the Tribunal prohibiting Bombardier from any further reliance on U.S. decisions in admitting pilots to its Canadian training program, the Court noted that had there been discrimination against Mr. Latif, and evidence of a discriminatory organizational policy, a broader order may have been necessary in the public interest in order to prevent discrimination against others.

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