CRARR WILL INTERVENE IN SUPREME COURT CASE ON RACISM WITH MAJOR CONSEQUENCES FOR EQUALITY-SEEKING GROUPS
Montreal, May 5, 2014 --- CRARR welcomes the Supreme Court’s decision to hear the appeal in Commission des droits de la personne et des droits de la jeunesse et al c. Bombardier et al.
The case involves a Canadian pilot of Pakistani background, Mr. Javed Latif, who in 2004 was offered a job to pilot Bombardier Challenger aircrafts and who was denied training (which took place in Quebec, Canada and Texas, U.S.A) by Bombardier due his being listed as a security threat by U.S. authorities. (In order to access training under a U.S. Federal Aviation Authority license, he had to pass a security check required by the U.S. government’s Alien Flight Students Program given that part of the training was to be offered in the U.S.)
As a result, he was denied employment and had problems finding work as a pilot. He filed a complaint of ethnic discrimination with the Quebec Human Rights and Youth Rights Commission, which upheld his case and brought it before the Human Rights Tribunal. In 2009, the Tribunal ruled in his favour and ordered Bombardier to pay him $385,000 in damages and to cease U.S. national security screening criteria in 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 and left Mr. Latif with no compensation. The Human Rights Commission sought 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, which has far reaching consequences for all discrimination cases in Quebec, is whether the Court of Appeal erred in requiring evidence of a “causal connection” between ethnic origin and discrimination. Canadian jurisprudence on discrimination usually requires evidence that a ground, such as race or gender, be a factor in an action or practice, which is a lower threshold to prove discrimination.
While the Quebec Court Appeal requires a “causal connection”, the Ontario Court of Appeal in June 2013 overturned a similar test in last year’s groundbreaking racial profiling case of Peel Law Association v. Pieters. In that case, which involves a highly respected civil rights lawyer Selwyn Pieters and another Black individual being racially profiled by a librarian, 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.” In the words of Mr. Justice Juriansz:
I do not think it acceptable, however, to attach the modifier “causal” to “nexus”. Doing so seems to me to elevate the test beyond what the law requires. The Divisional Court’s requirement of a “causal nexus” or a “causal link” between the adverse treatment and a prohibited ground seems counter to the evolution of human rights jurisprudence, which focuses on the discriminatory effects of conduct, rather than on intention and direct cause.
The consequences for civil rights are obvious if the more conservative and restrictive standard of proof of the Quebec Court of Appeal is allowed to stand. The case also marks the first time that the Supreme Court will address racial profiling.
CRARR will work with Mr. Pieters to file an amicus curiae and encourages all equality-seeking groups to intervene in favor of the more liberal and progressive evidentiary standard.