The Supreme Court Of Canada's Decision In CDPJD v. Bombardier

On July 23, 2015, the Supreme Court of Canada rendered a decision involving issues of both discrimination and national security (Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Aerospace Training Center, 2015 SCC 39). This decision clarifies the analytical process that a complainant must follow and the evidentiary threshold he or she must meet to prove that the complainant was discriminated against as contemplated by Quebec's Charter of human rights and freedoms (the "Charter"), despite the evidentiary difficulties entailed by national security measures.

Facts

Javed Latif ("Latif") is a Canadian citizen who was born in Pakistan, a predominantly Muslim country. In 2005-2005, he was an airline pilot holding both Canadian and U.S. pilot's licences. Like every pilot, he had to be specifically trained for whatever aircraft he was going to fly, before he could begin piloting it. Bombardier Inc. ("Bombardier"), a company in the aeronautical industry, was authorized to provide such training to both Canadian and U.S. pilots.

Following the events of September 11, 2001, the United States created the Alien Flight Students Program (the "AFSP") under which pilots who were not American citizens could be trained by an authorized training provider, provided they underwent security screening.

In 2003, the AFSP approved Latif's request for certification. In 2004, in order to receive U.S. authorized training from Bombardier to fly a different aircraft, he again needed to obtain certification from the AFSP, which this time was denied, on the basis that the security check had turned up facts that led U.S. authorities to conclude that he posed a threat to national security. Neither the procedure followed nor the basis for the decision was ever explained to him. Latif accordingly requested Bombardier to provide him with the requisite training pursuant to its Canadian authorization. Basing itself on the AFSP's decision, Bombardier refused to do so.

In 2007, the Commission des droits de la personne, Quebec's human rights commission (the "Commission") instituted proceedings against Bombardier alleging discrimination based on ethnic origin. In 2008, the AFSP lifted the prohibition on Latif's U.S. training. It was apparently a case of mistaken identity.

Decision of the Human Rights Tribunal

On November 29, 2010, the Quebec Human Rights Tribunal decided in favour of Latif: Bombardier's refusal to provide him with the...