Supreme Court Of Canada Twin Bill: Court Addresses US Government Profiling Allegations And Clarifies What's Required To Prove Discrimination

Sophisticated businesses operating in Canada often confront a dilemma caused by defence policy objectives of the United States of America. American law affects activities in Canada by, for example, controlling who can access defence-related technology (even if the immediate application of that technology is not a military application), currency transfers, and even airplane pilot training. But these US requirements, which are often backstopped by the threat of multi-million dollar fines, may spark allegations of discrimination under Canadian human rights legislation. The Supreme Court of Canada ("SCC") has now set out some basic principles that clarify the test to be applied in discrimination complaints, which should help businesses assess potential risk when trying to comply with both US and Canadian requirements.

The Problem: The US Rule Precludes Skills Training in Canada

In Bombardier Inc. (Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39), an airplane pilot, who was a Canadian citizen born in Pakistan, alleged that Bombardier violated human rights legislation when it refused to provide him training for a particular airplane. Bombardier refused him training only because the US Department of Justice ("US DOJ") did not issue the pilot the requisite security clearance for the training. The US DOJ provided no reasons for its decision to refuse the security clearance. The case involved a five year period during which the US DOJ refused to grant him a security clearance. Interestingly, the pilot had been granted a security clearance for other purposes both before this decision.

The Alleged Discrimination: The Racial Profiling Syllogism

The Quebec Human Rights Tribunal found that Bombardier's decision not to train was a discriminatory practice because it was based on a clearance decision by the US DOJ, which, the Tribunal found, engaged in racial profiling or "targeted Arab or Muslim people or, more broadly, people from Muslim countries, including Pakistan". According to the Tribunal, because the US DOJ engaged in racial profiling, its decision not to issue the security clearance must have been a discrimination based on place of origin. Consequently, Bombardier's decision not to train the pilot was also discriminatory because it was based on the tainted US DOJ's decision.

The SCC Requires Evidence of Discrimination

The SCC ruled the opposite...