August 13, 2015 By: Andrew Reinholdt
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What is an employer’s liability if it refuses to employ someone, based on another’s discriminatory decision? This was the issue the Supreme Court of Canada had to deal with in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center).

Bombardier operated pilot training centres in Montreal and Dallas. Javed Latif, a Canadian citizen born in Pakistan, held both Canadian and U.S. pilot licenses. He registered to train in Dallas using his U.S. license, requiring Bombardier to seek clearance from U.S. authorities, in accordance with post-9/11 security measures. The U.S. authorities denied the request. He then applied to train at Bombardier’s Montreal facility under his Canadian license, but Bombardier refused him again based on the U.S. authorities’ decision. Mr. Latif alleged that Bombardier’s decision constituted discrimination under Quebec’s Charter of Human Rights and Freedoms (the “Quebec Charter”).

In front of Quebec’s Human Rights Commission, Commission des droits de la personne et des droit de la jeunesse (“the Commission”), Mr. Latif argued that the U.S. decision to refuse his security clearance was based on his Pakistani origin; more specifically, that the U.S. engaged in racial profiling by directly targeting Arabs and Muslims. He brought forth expert evidence showing that since 9/11 several U.S. agencies had engaged in racial profiling against Arabs, Muslims and people from Muslim countries. Therefore, because Bombardier refused to train him at its Montreal facility based on the U.S.’ discriminatory decision, it had denied him the right to full and equal treatment under the Quebec Charter.

The Commission agreed with Mr. Latif and awarded him nearly $400,000 in moral, punitive, and material prejudice damages. It also ordered that Bombardier cease applying or considering U.S. standards in ‘national security’ matters when dealing with applications for the training of pilots.

The Supreme Court disagreed and overturned the Commission’s decision. It held that Mr. Latif had not produced sufficient evidence to show that the U.S. authorities’ decision was related to his ethnic origin, and that the Commission presumed, given the social context, that the U.S. authorities’ decision was based on his ethnic origin.

Importantly, the Supreme Court explained that had there been evidence that the U.S. authorities’ decision was based on discriminatory reasoning, such as racial profiling, Bombardier could have been liable, because a company cannot blindly comply with the decision of a foreign authority without exposing itself to liability.

While this is an unusual case, in that it involves a Canadian company denying someone access to job training based on a foreign government’s decision, there are two important takeaways from it that relate to human rights in the employment law context.

First, the Supreme Court reaffirmed that human rights legislation protects against adverse effect or indirect discrimination. This is where a rule or practice unintentionally singles out or affects a particular person, or a particular group of individuals, based on a prohibited ground.

Second, and in the same vein, a company cannot blindly deny access to employment or training based on someone else’s discriminatory decision.

If you believe you have been denied an employment opportunity because of a discriminatory reason, please contact one of our employment lawyers who can properly advise you of your rights.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Employment Law