UPDATE: CRARR APPEARED BEFORE THE SUPREME COURT IN THE JAVED LATIF CASE
Montreal, January 23, 2015 --- CRARR's lawyers Selwyn Pieters and Aymar Missakila appeared today before the Supreme Court this Friday to make an oral presentation in the case Commission des droits de la personne et des droits de la jeunesse et al c. Bombardier et al.
Last month, CRARR has been granted intervener status in the case. The Supreme Court decision will have deep ramifications for all equality cases since one of the key issues is the burden of proof of discrimination.
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, Mr. Latif 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 2010, the Tribunal ruled in his favour and ordered Bombardier to pay him $315,000 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 is whether the Quebec 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 only 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 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 is the only Quebec intervener and will make the case for a “consistent, uniform and unequivocal evidentiary requirement for assessing discrimination claims (that) can more effectively establish a harmonized and coherent national approach to guide all equality-seeking individuals and groups as well as all courts and tribunals in Quebec (and) in the rest of Canada, in their common pursuit of the equal protection and benefit of the law.”
“It is a rare opportunity for the Supreme Court, and for our country as a whole, to address racial profiling and discrimination in this decade. We are very honored and grateful to have as co-counsel Mr. Selwyn Pieters, who has made significant contributions to the advancement of racial equality in our Canadian justice system and beyond,” said CRARR's Executive Director Fo Niemi.
Other groups that were also granted intervener status are the Canadian Civil Liberties Association, the Canadian Human Rights Commission, the National Council of Canadian Muslims and the Canadian Muslim Lawyers Association, and the South Asian Legal Clinic of Ontario.
In addition to Mr. Pieters and Mr. Missakila, Mr. William Fuhgeh, CRARR's agent, and Ms. Humera Jabir, law student who worked on the intervention, also attended the hearing.