Commission des droits de la personne et des droits de la jeunesse (Qué.) v. Bombardier Inc. et al., (2015) 473 N.R. 50 (SCC)

• Judge: McLachlin, C.J.C., Abella, Rothstein, Cromwell, Karakatsanis, Wagner and Côté, JJ.
• Court: Supreme Court (Canada)
• Case Date: January 23, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 473 N.R. 50 (SCC);2015 SCC 39;[2015] SCJ No 39 (QL);[2015] 2 SCR 789

HRC v. Bombardier Inc. (2015), 473 N.R. 50 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.R. TBEd. JL.014

Commission des droits de la personne et des droits de la jeunesse (appellant) v. Bombardier Inc. (Bombardier Aerospace Training Center) and Javed Latif (respondents)

Javed Latif (appellant) v. Bombardier Inc. (Bombardier Aerospace Training Center) and Commission des droits de la personne et des droits de la jeunesse (respondents) and Canadian Civil Liberties Association, Canadian Human Rights Commission, Center for Research-Action on Race Relations, National Council of Canadian Muslims, Canadian Muslim Lawyers Association and South Asian Legal Clinic of Ontario (interveners)

(35625; 2015 SCC 39; 2015 CSC 39)

Indexed As: Commission des droits de la personne et des droits de la jeunesse (Qué.) v. Bombardier Inc. et al.

Supreme Court of Canada

McLachlin, C.J.C., Abella, Rothstein, Cromwell, Karakatsanis, Wagner and Côté, JJ.

July 23, 2015.

Summary:

Latif, a pilot, was a Canadian citizen born in Pakistan. Bombardier Inc. refused to provide training to Latif under his Canadian pilot licence based solely on the fact that the United States Department of Justice had not issued him a security clearance. Latif filed a discrimination complaint with the Commission des droits de la personne et des droits de la jeunesse under the Quebec Charter of human rights and freedoms (Charter). The matter was referred to the Human Rights Tribunal.

The Human Rights Tribunal, in a decision with neutral citation 2010 QCTDP 16, held that the refusal to train Latif under his Canadian licence did not depend directly on his Pakistani origin, but on the refusal of the U.S. authorities to give him security clearance, which was made in the context of racial profiling. The Tribunal found that Bombardier's denial of Latif's request thus had the effect of creating a distinction based on one of the prohibited grounds of discrimination, namely ethnic or national origin, which had in turn had the effect of impairing his right to full and equal recognition and exercise of his rights guaranteed by the Charter. It concluded on this basis that the Commission had discharged its burden of adducing prima facie proof of discrimination. The Tribunal rejected justifications raised by Bombardier. The Tribunal awarded monetary remedies and also ordered Bombardier to cease applying or considering the standards and decisions of the U.S. authorities in national security matters when dealing with applications for the training of pilots under Canadian pilot's licences. Bombardier appealed.

The Quebec Court of Appeal in a decision with neutral citation 2013 QCCQ 1650, allowed the appeal. The court proceeded on the assumption that the exclusion of Latif had in fact occurred, but it held that the Commission had not shown a causal connection between the exclusion and a prohibited ground. The court acknowledged that such a connection could be proven by way of circumstantial evidence or presumptions, but it found that there was no such proof in this case. The court held that because Bombardier's decision had been based solely on the decision of the U.S. authorities, the Tribunal could not find that Bombardier had discriminated against Latif without proof that the decision in question was itself based on a ground that was prohibited under the Charter. Finding that there was no such proof, the court set aside the Tribunal's decision. The Commission appealed.

The Supreme Court of Canada dismissed the appeal. The court held that the Tribunal's decision was not supported by the evidence on the record, it was unreasonable, and had to be set aside. It was not established, in this case, that Latif was discriminated against as a result of Bombardier's actions.

Civil Rights - Topic 903

Discrimination - General principles - Elements - The Supreme Court of Canada stated that the language of the Quebec Charter of human rights and freedoms (Charter) permitted the courts to take note of new forms of discrimination as they emerged - However, whatever form discrimination took, the two-step analysis applicable to a complaint under the Charter did not change - In the first stage of the analysis, s. 10 of the Charter required that the plaintiff prove three elements: (1) a distinction, exclusion or preference; (2) based on one of the listed grounds; and (3) which had the effect of nullifying or impairing the right to full and equal recognition and exercise of a human right or freedom - If those three elements were established on a balance of probabilities, there was "prima facie discrimination" - At the second stage of the analysis, the defendant could justify his or her decision or conduct on the basis of the exemptions provided for in the applicable human rights legislation or those developed by the courts - If the defendant failed to do so, discrimination would then be found to have occurred - See paragraph 34 to 37 and 55 to 69.

Civil Rights - Topic 903

Discrimination - General principles - Elements - The Supreme Court of Canada noted that to establish prima facie discrimination under s. 10 of the Quebec Charter of human rights and freedoms, the plaintiff had to prove three elements: (1) a distinction, exclusion or preference; (2) based on one of the listed grounds; and (3) which had the effect of nullifying or impairing the right to full and equal recognition and exercise of a human right or freedom - The court stated that with regard to the second element the plaintiff had the burden of showing that there was a "connection" between a prohibited ground of discrimination and the distinction, exclusion or preference of which he or she complained or, in other words, that the ground in question was a "factor" in the distinction, exclusion or preference - Lastly, the plaintiff had to show that the distinction, exclusion or preference affected the full and equal exercise of a right or freedom guaranteed to him or her by the Charter - See paragraphs 43 to 56.

Civil Rights - Topic 907

Discrimination - General principles - Evidence and proof - [See both Civil Rights - Topic 903 and Civil Rights - Topic 1031 ].

Civil Rights - Topic 1031

Discrimination - Race and national or ethnic origin - General (incl. what constitutes) - Latif, a pilot, was a Canadian citizen born in Pakistan - Bombardier Inc. refused to provide training to Latif under his Canadian pilot licence based solely on the fact that the United States authorities had not issued him a security clearance - The Commission des droits de la personne et des droits de la jeunesse claimed that the U.S. authorities' decision was the result of racial profiling and that Bombardier discriminated against Latif by relying on that decision - The Human Rights Tribunal (Que.) held that a prima facie case of discrimination on grounds of ethnic or national origin was established (Charter of human rights and freedoms, s. 10) - The Supreme Court of Canada held that the Tribunal's decision was not supported by the evidence on the record, it was unreasonable, and had to be set aside - The court concluded that evidence available to the Tribunal (indeed the absence of evidence), was such that it could not reasonably hold that there was a connection between Latif's ethnic or national origin and the decision of the U.S. authorities, and therefore Bombardier's decision to deny Latif's training request - As a result, it was not open to the Tribunal to conclude that Bombardier's decision constituted prima facie discrimination under the Charter - See paragraphs 70 to 100.

Civil Rights - Topic 7003

Federal or provincial legislation - General - Interpretation of human rights legislation - The Supreme Court of Canada noted that the court had confirmed that the Charter of human rights and freedoms (Quebec) had a special quasi-constitutional status - Unless otherwise provided, ss. 1 to 38 of the Charter prevailed over other Quebec statutes - The Charter had to be given a liberal, contextual and purposive interpretation - The court stated that it also favoured a consistent interpretation of the various provincial human rights statutes unless a legislature intended otherwise - Further, although the Charter's provisions need not necessarily mirror those of the Canadian Charter of Rights and Freedoms, they had to be interpreted in light of the latter - See paragraphs 29 to 31.

Civil Rights - Topic 7063

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Remedies - Bombardier Inc. refused to provide training for a Canadian licenced pilot solely because United States authorities had not issued him a security clearance - The Human Rights Tribunal (Que.) held that a prima facie case of discrimination was established (Charter of human rights and freedoms, s. 10) - The Tribunal issued a mandatory order requiring Bombardier to cease applying or considering the standards and decisions of the U.S. authorities in national security matters when dealing with applications for the training of pilots under Canadian pilot's licences - Bombardier complained that the order overstepped the bounds of the Tribunal's powers under the Charter, because it was not limited to the scope of the dispute - The Supreme Court of Canada held that the Tribunal's finding of prima facie discrimination had to be set aside - The court, however, discussed the appropriateness of the mandatory order - The court opined that the Tribunal's jurisdiction was subject to that of the Commission, which was required to act in the public interest, and that the Charter gave the Tribunal the power to make orders that transcended the case before it in order to prevent future discrimination - See paragraphs 101 to 105.

Civil Rights - Topic 7110

Federal, provincial or territorial legislation - Practice - Evidence and proof - [See both Civil Rights - Topic 903 and Civil Rights - Topic 1031 ].

Civil Rights - Topic 7182

Federal, provincial or territorial legislation - Remedies - Injunctions and mandatory orders - [See Civil Rights - Topic 7063 ].

Cases Noticed:

St. Jacques v. Fédération des employées et employés de services public Inc. (C.S.N.) et al., [1996] 2 S.C.R. 345; 198 N.R. 1, refd to. [para. 30].

Quebec (Commission des droits de la personne et des droits de la juenesse) v. Montreal (Ville) et al., [2000] 1 S.C.R. 665; 253 N.R. 107; 2000 SCC 27, refd to. [para. 30].

de Montigny v. Brossard (Succession), [2010] 3 S.C.R. 64; 408 N.R. 80; 2010 SCC 51, refd to. [para. 30].

Potash Corp. of Saskatchewan Inc. v. Scott et al., [2008] 2 S.C.R. 604; 377 N.R. 91; 332 N.B.R.(2d) 341; 852 A.P.R. 341; 2008 SCC 45, refd to. [para. 31].

New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc. - see Potash Corp. of Saskatchewan Inc. v. Scott et al.

Ontario Human Rights Commission and O'Malley v. Simpson Sears, [1985] 2 S.C.R. 536; 64 N.R. 161; 12 O.A.C. 241, refd to. [para. 32].

Commission scolaire régionale de Chambly v. Syndicat de l'enseignement de Champlain et autres, [1994] 2 S.C.R. 525; 169 N.R. 281; 62 Q.A.C. 241, refd to. [para. 32].

Forget v. Québec (Procureur général) and Office de la langue française, [1988] 2 S.C.R. 90; 87 N.R. 37; 17 Q.A.C. 241, refd to. [para. 32].

Chaussure Brown's Inc. et al. v. Québec (Procureur général), [1988] 2 S.C.R. 712; 90 N.R. 84; 19 Q.A.C. 69, refd to. [para. 32].

Ford v. Quebec (Attorney General) - see Chaussure Brown's Inc. et al. v. Québec (Procureur général).

Action Travail Des Femmes v. Canadian National Railway Co., [1987] 1 S.C.R. 1114; 76 N.R. 161, refd to. [para. 32].

Canadian National Railway Co. v. Canada (Canadian Human Rights Commission) - see Action Travail Des Femmes v. Canadian National Railway Co.

Singer (Allan) Ltd. v. Québec (Procureur général) et al., [1988] 2 S.C.R. 790; 90 N.R. 48; 19 Q.A.C. 33, refd to. [para. 35].

Devine v. Quebec (Attorney General) - see Singer (Allan) Ltd. v. Québec (Procureur général) et al.

McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal et al., [2007] 1 S.C.R. 161; 356 N.R. 177; 2007 SCC 4, refd to. [para. 37].

British Columbia (Minister of Education) v. Moore et al., [2012] 3 S.C.R. 360; 436 N.R. 152; 328 B.C.A.C. 1; 558 W.A.C. 1; 2012 SCC 61, refd to. [para. 37].

Public Service Employee Relations Commission (B.C.) v. British Columbia Government and Service Employees' Union, [1999] 3 S.C.R. 3; 244 N.R. 145; 127 B.C.A.C. 161; 207 W.A.C. 161, refd to. [para. 38].

Gaz métropolitan inc. v. Commission des droits de la personne et des droits de la jeunesse, 2011 QCCA 1201, refd to. [para. 38].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 40].

Commission des droits de la personne du Québec v. Québec (Ville) (1989), 21 Q.A.C. 216 (C.A.), leave to appeal refused [1989] 2 S.C.R. vi; 103 N.R. 160, refd to. [para. 40].

Commission des droits de la personne et des droits de la jeunesse v. Gaz métropolitain, 2008 QCTDP 24, refd to. [para. 48].

Peel Law Association et al. v. Pieters et al. (2013), 306 O.A.C. 314; 116 O.R.(3d) 81; 2013 ONCA 396, refd to. [para. 49].

Ruel v. Marois, [2001] R.J.Q. 2590 (C.A.), refd to. [para. 53].

Velk v. McGill University, 2011 QCCA 578, refd to. [para. 53].

Banque Canadienne Nationale v. Mastracchio, [1962] S.C.R. 53, refd to. [para. 65].

Rousseau v. Bennett, [1956] S.C.R. 89, refd to. [para. 65].

Parent v. Lapointe, [1952] 1 S.C.R. 376, refd to. [para. 65].

Université du Québec à Trois-Rivières v. Syndicat des employés professionnels del'Université du Québec à Trois-Rivières et al., [1993] 1 S.C.R. 471; 148 N.R. 209, refd to. [para. 68].

Mouvement laïque québécois et al. v. Saguenay (City) (2015), 470 N.R. 1; 2015 SCC 16, refd to. [para. 70].

Commission des droits de la personne et des droits de la jeunesse (Qué.) v. Montréal (Communauté urbaine), [2004] 1 S.C.R. 789; 319 N.R. 379; 2004 SCC 30, refd to. [para. 104].

Doucet-Boudreau et al. v. Nova Scotia (Minister of Education) et al., [2003] 3 S.C.R. 3; 312 N.R. 1; 218 N.S.R.(2d) 311; 687 A.P.R. 311; 2003 SCC 62, refd to. [para. 104].

Statutes Noticed:

Aviation and Transportation Security Act, Pub. L. 107-71, 115 Stat. 597 (2001), sect. 113 [para. 6].

Civil Code of Québec, art. 2804 [para. 65].

Flight Training for Aliens and Other Designated Individuals; Security Awareness Training for Flight School Employees, 69 Fed. Reg. 56324 (2004), generally [para. 7].

Charter of Human Rights and Freedoms, C.Q.L.R., c. C-12, sect. 10 [para. 3]; sect. 71, sect. 80 [para. 103]; sect. 123 [para. 66].

Screening of Aliens and Other Designated Individuals Seeking Flight Training, 68 Fed. Reg. 7313 (2003), generally [para. 6].

Vision 100 - Century of Aviation Reauthorization Act, Pub. L. 108-176, 117 Stat. 2490 (2003), generally [para. 7].

Authors and Works Noticed:

Baudoui, Jean-Louis, Deslauriers, Patrice and Moore, Benoît, La responsabilité civile (8th Ed. 2014), para. I-683 [para. 50].

Garant, Patrice, Droit administratif (6th Ed. 2010), p. 105 [para. 68].

Ontario, Human Rights Commission, Policy and guidelines on racism and racial discrimination, (2005), www.ohrc.on.ca/sites/ dfault/files/attachments/Policy_and_guidelines_on_racism_and_racial_discrimination.pdf, p. 19 [para. 33].

Proulx, Danile, La discrimination fondée sur le handicap: étude comparée de la Charte québécoise (1996), 56 R. du B. 317, p. 420 [para. 48].

Robitaille, Daivd, Non-indépendance et autonomie de la norme d'égalité québécoise: des concepts fondateurs qui méritent d'être mieux connus (2004), 35 R.D.U.S. 103, generally [para. 54].

Royer, Jean-Claude, and Lavallée, Sophie, La preuve civile, (4th Ed. 2008), para. 158 [para. 50].

Turenne, Michèle, Racial Profiling: Context and Definition, Michèle (2005), www.cdpdj.qc.ca/Publications/racial_profiling_definition.pdf, p. 13 [para. 33].

Counsel:

Athanassia Bitzakidis and Christian Baillargeon, for the appellant/respondent, Commission des droits de la personne et des droits de la jeunesse;

Mathieu Bouchard and Catherine Elizabeth McKenzie, for the respondent/appellant, Javed Latif;

Michel Sylvestre, Andres Garin and Sébastien Beauregard, for the respondent, Bombardier Inc. (Bombardier Aerospace Training Center);

Andrew K. Lokan and Jean-Claude Killey, for the intervener, the Canadian Civil Liberties Association;

Philippe Dufresne and Sheila Osborne-Brown, for the intervener, the Canadian Human Rights Commission;

Selwyn Pieters and Aymar Missakila, for the intervener, the Center for Research-Action on Race Relations;

Faisal Bhabha, Khalid M. Elgazzar and Faisal Mirza, for the interveners, the National Council of Canadian Muslims and the Canadian Muslim Lawyers Association;

Ranjan K. Agarwal and Preet K. Bell, for the intervener, the South Asian Legal Clinic of Ontario.

Solicitors of Record:

Boies Drapeau Bourdeau, Montreal, Quebec, for the appellant/respondent, Commission des droits de la personne et des droits de la jeunesse;

Irving Mitchell Kalichman, Westmount, Quebec, for the respondent/appellant, Javed Latif;

Norton Rose Fulbright Canada, Montreal, Quebec, for the respondent, Bombardier Inc. (Bombardier Aerospace Training Center);

Paliare Roland Rosenberg Rothstein, Toronto, Ontario, for the intervener, the Canadian Civil Liberties Association;

Canadian Human Rights Commission, Ottawa, Ontario, for the intervener, the Canadian Human Rights Commission;

Selwyn Pieters, Toronto, Ontario; Aymar Missakila, Montreal, Quebec, for the intervener, the Center for Research-Action on Race Relations;

Office of Khalid Elgazzar, Barrister, Ottawa, Ontario, for the interveners, the National Council of Canadian Muslims and the Canadian Muslim Lawyers Association;

Bennett Jones, Toronto, Ontario, for the intervener, the South Asian Legal Clinic of Ontario.

These appeals were heard on January 23, 2015, before McLachlin, C.J.C., and Abella, Rothstein, Cromwell, Karakatsanis, Wagner and Côté, JJ., of the Supreme Court of Canada. The decision of the court was delivered by Wagner and Côté, JJ., on July 23, 2015.