Interesting result in human rights Supreme Court of Canada case.

Posted By: Linda McKay-Panos

A recent Supreme Court of Canada case, Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc (Bombardier Aerospace Training Centre), 2015 SCC 39, provides guidance on the complainant's burden of proving discrimination. The case law on discrimination provides for a two-step process: the complainant's burden of making out a prima facie [at first appearance] case of discrimination, followed by the respondent's burden of justifying its actions. According to the SCC, the confusion stems from the use of the term "prima facie", which does not lower the burden of proof. The case also demonstrates how difficult it is for complainants to effectively prove the claim they have been denied something on the grounds of "national security".

Javed Latif, a Canadian citizen born in Pakistan, held both Canadian and United States (U.S.) pilot's licences. In 2003, Mid East Jet offered Latif work flying a Boeing 737 under his U.S. licence. He registered for training and was issued a U.S. security clearance in 2003. Unfortunately, this job opportunity fell through, but he received another offer from ACASS Canada Ltd to pilot a Bombardier Challenger 604 aircraft. He again applied for training under his U.S. licence at Bombardier's Dallas training centre. There was another required security clearance from the U.S. Department of Justice. This time, there was a delay in receiving the clearance, partly because the U.S. has passed stricter requirements in 2004. Because he did not want to lose the job opportunity, Latif registered for training under his Canadian licence.

In April 2004, Latif was informed that Bombardier has received an unfavourable reply to his security screening request from the U.S., which meant he could not receive training there. No explanation was provided for the denial, but Latif thought it must be due to an identification error. Because Latif was denied security clearance in the U.S., Bombardier refused to provide him training under his Canadian licence.

Latif complained to the Quebec Commission des droits de la personne et des droits de la jeunesse ("Commission") that Bombardier had discriminated against him on the grounds of ethnic or national origin. Quebec's Human Rights Tribunal addressed the burden of proof and said that the burden was on the Commission to prove the following three elements on a balance of probabilities:

1. a distinction, exclusion or preference;

2. based on...