Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center)

Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center)
Collection
Supreme Court Judgments
Date
2015-07-23
Neutral citation
2015 SCC 39
Report
[2015] 2 SCR 789
Case number
35625
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Karakatsanis, Andromache; Wagner, Richard; Côté, Suzanne
On appeal from
Quebec
Notes
SCC Case Information: 35625
Decision Content
SUPREME COURT OF CANADA
Citation: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, [2015] 2 S.C.R. 789
Date: 20150723
Docket: 35625
Between:
Commission des droits de la personne et des droits de la jeunesse
Appellant
and
Bombardier Inc. (Bombardier Aerospace Training Center) and Javed Latif
Respondents
And Between:
Javed Latif
Appellant
and
Bombardier Inc. (Bombardier Aerospace Training Center) and Commission des droits de la personne et des droits de la jeunesse
Respondents
- and -
Canadian Civil Liberties Association, Canadian Human Rights Commission, Center for Research-Action on Race Relations, National Council of Canadian Muslims, Canadian Muslim Lawyers Association and South Asian Legal Clinic of Ontario
Interveners
Official English Translation
Coram: McLachlin C.J. and Abella, Rothstein, Cromwell, Karakatsanis, Wagner and Côté JJ.
Joint Reasons for Judgment:
(paras. 1 to 107)
Wagner and Côté JJ. (McLachlin C.J. and Abella, Rothstein, Cromwell and Karakatsanis JJ. concurring)
Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, [2015] 2 S.C.R. 789
Commission des droits de la personne et des droits de la jeunesse Appellant
v.
Bombardier Inc. (Bombardier Aerospace Training Center) and
Javed Latif Respondents
‑ and ‑
Javed Latif Appellant
v.
Bombardier Inc. (Bombardier Aerospace Training Center) and
Commission des droits de la personne et des droits de la jeunesse Respondents
and
Canadian Civil Liberties Association,
Canadian Human Rights Commission,
Center for Research‑Action on Race Relations,
National Council of Canadian Muslims,
Canadian Muslim Lawyers Association and
South Asian Legal Clinic of Ontario Interveners
Indexed as: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center)
2015 SCC 39
File No.: 35625.
2015: January 23; 2015: July 23.
Present: McLachlin C.J. and Abella, Rothstein, Cromwell, Karakatsanis, Wagner and Côté JJ.
on appeal from the court of appeal for quebec
Human rights — Right to equality — Discrimination based on national or ethnic origin — Evidence — Canadian company denying request for pilot training made by Canadian citizen of Pakistani origin on basis of decision of U.S. authorities to prohibit training of pilot in question in United States — Two-step process for discrimination complaint under s. 10 of Quebec Charter — Definition of prima facie discrimination, and degree of proof required in order to establish it — Whether prima facie discrimination has been proven in this case — Charter of human rights and freedoms, CQLR, c. C‑12, s. 10.
B operates two centres, in Montréal and Dallas, at which pilots are trained on the types of aircraft it produces. This training is offered to pilots holding licences issued by various authorities, including Canada and the United States. L, a Canadian citizen born in Pakistan, held Canadian and U.S. pilot’s licences. In 2004, L registered for training at B’s Dallas centre under his U.S. licence. A security clearance from the U.S. authorities was requested for L in accordance with enhanced aviation security measures that had been implemented by the United States in the wake of the terrorist attacks of September 11, 2001. This request was denied. As a result, L could not receive the training from B under his U.S. licence. B also refused to train him at its Montréal centre under his Canadian licence. Being of the view that B’s refusal constituted discrimination against him, L filed a complaint with the Commission des droits de la personne et des droits de la jeunesse (“Commission”). After investigating, the Commission initiated proceedings in the Human Rights Tribunal in which it alleged that B had impaired L’s right to avail himself of services ordinarily offered to the public and his right to the safeguard of his dignity and reputation without discrimination based on ethnic or national origin, contrary to ss. 4, 10 and 12 of the Quebec Charter of human rights and freedoms.
The Tribunal agreed with the Commission, ordering B to pay damages to L. It also ordered B to cease applying or considering the standards and decisions of the U.S. authorities in national security matters when dealing with applications for the training of pilots under Canadian pilot’s licences. The Court of Appeal set aside the Tribunal’s decision on the basis that the Tribunal could not find that B had discriminated against L without proof that the U.S. authorities’ decision was itself based on a ground that is prohibited under the Charter.
Held: The appeals should be dismissed.
An application with respect to a complaint under the Charter involves a two‑step process that successively imposes separate burdens of proof on the plaintiff and the defendant. Whatever form discrimination takes, this two‑step analysis does not change. The fact that racial profiling is recognized as a prohibited form of discrimination does not therefore change this process. At the first step, s. 10 of the Charter requires that the plaintiff prove three elements: (1) a distinction, exclusion or preference, (2) based on one of the grounds listed in the first paragraph of s. 10, and (3) which has the effect of nullifying or impairing the right to full and equal recognition and exercise of a human right or freedom. If these three elements are established, there is “prima facie discrimination”. At the second step, the defendant can justify his or her decision or conduct on the basis of the exemptions provided for in the applicable human rights legislation or those developed by the courts. If the defendant fails to do so, discrimination will then be found to have occurred.
The first element of prima facie discrimination is not problematic: the plaintiff must prove the existence of differential treatment, that is, that a decision, a measure or conduct affects him or her differently from others to whom it may apply. As regards the second element, the plaintiff has the burden of showing that there is a connection between a prohibited ground of discrimination and the distinction, exclusion or preference of which he or she complains or, in other words, that the ground in question was a factor in the distinction, exclusion or preference. It is not essential that this connection be an exclusive one: for a particular decision or action to be considered discriminatory, the prohibited ground need only have contributed to it. Lastly, as to the third element, the plaintiff must show that the distinction, exclusion or preference affects the full and equal exercise of a right or freedom guaranteed to him or her by the Charter. The Quebec Charter, unlike the Canadian Charter of Rights and Freedoms , does not protect the right to equality per se; this right is protected only in the exercise of the other rights and freedoms guaranteed by the Charter. The right to non‑discrimination cannot therefore serve as a basis for an application on its own and must necessarily be attached to another human right or freedom recognized by law.
The plaintiff must prove the three elements of prima facie discrimination in accordance with the standard of proof that normally applies in the civil law, namely that of proof on a balance of probabilities. In a discrimination context, the expression “prima facie” refers only to the first step of the process and does not alter the applicable degree of proof. The use of this expression can be explained quite simply on the basis of the two‑step test for complaints of discrimination under the Charter, and it concerns only the three elements that must be proven by the plaintiff at the first step. If no justification is established by the defendant, proof of these three elements on a balance of probabilities will be sufficient for the tribunal to find that s. 10 of the Charter has been violated. If, on the other hand, the defendant succeeds in justifying his or her decision or conduct, also in accordance with the standard of proof on a balance of probabilities, there will have been no violation, not even if prima facie discrimination is found to have occurred. The defendant can therefore either present evidence to refute the allegation of prima facie discrimination, put forward a defence justifying the discrimination, or do both.
Because the Tribunal’s decision in this case was not supported by the evidence in the record, it was unreasonable and must be set aside. The Commission had to show that B’s decision was discriminatory by establishing on a balance of probabilities that there was a connection between the decision and L’s ethnic or national origin. Because B’s decision to deny L’s request for training was based solely on the U.S. authorities’ refusal to issue him a security clearance, proof of a connection between the U.S. authorities’ decision and a prohibited ground of discrimination would have satisfied the requirements of the second element of the test for prima facie discrimination. However, the Commission did not adduce sufficient evidence — either direct or circumstantial — to show that L’s ethnic or national origin had played any role in the U.S. authorities’ unfavourable reply to his security screening request. It cannot be presumed solely on the basis of a social context of discrimination against a group that a specific decision against a member of that group is necessarily based on a prohibited ground under the Charter. In practice, this would amount to reversing the burden of proof in discrimination matters. Evidence of discrimination, even if it is circumstantial, must be tangibly related to the impugned decision or conduct. As a result, it was not open to the Tribunal in this case to conclude that B’s decision constituted prima facie discrimination under the Charter. The conclusion in this case does not mean that a company can blindly comply with a discriminatory decision of a foreign authority without exposing itself to liability under the Charter. This conclusion flows from the fact that there is simply no evidence of a connection between a prohibited ground and the foreign decision in question.
Cases Cited
Referred to: Béliveau St‑Jacques v. Fédération des employées et employés de services publics inc., [1996] 2 S.C.R. 345; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), 2000 SCC 27, [2000] 1 S.C.R. 665; de Montigny v. Brossard (Succession), 2010 SCC 51, [2010] 3 S.C.R. 64; New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc., 2008 SCC 45, [2008] 2 S.C.R. 604; Ontario Human Rights Commission v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525; Forget v. Quebec (Attorney General), [1988] 2 S.C.R. 90; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114; Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790; McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4, [2007] 1 S.C.R. 161; Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; Gaz métropolitain inc. v. Commission des droits de la personne et des droits de la jeunesse, 2011 QCCA 1201, aff’g in part 2008 QCTDP 24; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Commission des droits de la personne du Québec v. Ville de Québec, [1989] R.J.Q. 831, leave to appeal refused, [1989] 2 S.C.R. vi; Peel Law Assn. v. Pieters, 2013 ONCA 396, 116 O.R. (3d) 80; Ruel v. Marois, [2001] R.J.Q. 2590; Velk v. McGill University, 2011 QCCA 578; Banque Canadienne Nationale v. Mastracchio, [1962] S.C.R. 53; Rousseau v. Bennett, [1956] S.C.R. 89; Parent v. Lapointe, [1952] 1 S.C.R. 376; Université du Québec à Trois‑Rivières v. Larocque, [1993] 1 S.C.R. 471; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Communauté urbaine de Montréal, 2004 SCC 30, [2004] 1 S.C.R. 789; Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3.
Statutes and Regulations Cited
Act respecting administrative justice, CQLR, c. J‑3, ss. 9 to 12.
Aviation and Transportation Security Act, Pub. L. 107‑71, § 113, 115 Stat. 597 (2001).
Canadian Charter of Rights and Freedoms .
Charter of human rights and freedoms, CQLR, c. C‑12, ss. 4, 10, 12, 20, 52, 53, 71, 80, 123.
Civil Code of Québec, art. 2804.
Flight Training for Aliens and Other Designated Individuals; Security Awareness Training for Flight School Employees, 69 Fed. Reg. 56324 (2004).
Screening of Aliens and Other Designated Individuals Seeking Flight Training, 68 Fed. Reg. 7313 (2003).
Vision 100 — Century of Aviation Reauthorization Act, Pub. L. 108‑176, § 612(a), (c), 117 Stat. 2490 (2003).
Authors Cited
Baudouin, Jean‑Louis, Patrice Deslauriers et Benoît Moore. La responsabilité civile, 8e éd. Cowansville, Que.: Yvon Blais, 2014.
Garant, Patrice, avec la collaboration de Philippe Garant et Jérôme Garant. Droit administratif, 6e éd. Cowansville, Que.: Yvon Blais, 2010.
Ontario. Ontario Human Rights Commission. Policy and guidelines on racism and racial discrimination, 2005 (online: www.ohrc.on.ca/sites/default/files/attachments/Policy_and_guidelines_on_racism_and_racial_discrimination.pdf).
Proulx, Daniel. “La discrimination fondée sur le handicap: étude comparée de la Charte québécoise” (1996), 56 R. du B. 317.
Quebec. Commission des droits de la personne et des droits de la jeunesse. Racial Profiling: Context and Definition, by Michèle Turenne. Cat. 2.120‑1.25.1, 2005 (online: www.cdpdj.qc.ca/Publications/racial_profiling_definition.pdf).
Robitaille, David. “Non‑indépendance et autonomie de la norme d’égalité québécoise: des concepts ‘fondateurs’ qui méritent d’être mieux connus” (2004), 35 R.D.U.S. 103.
Royer, Jean‑Claude, et Sophie Lavallée. La preuve civile, 4e éd. Cowansville, Que.: Yvon Blais, 2008.
APPEALS from a judgment of the Quebec Court of Appeal (Fournier and St‑Pierre JJ.A. and Viens J. (ad hoc)), 2013 QCCA 1650, [2013] R.J.Q. 1541, [2013] AZ‑51004481, [2013] J.Q. no 12486 (QL), 2013 CarswellQue 9362 (WL Can.), setting aside a decision of the Quebec Human Rights Tribunal, 2010 QCTDP 16, [2011] R.J.Q. 225, [2010] AZ‑50698315, [2010] Q.H.R.T.J. No. 16 (QL), 2010 CarswellQue 15544 (WL Can.). Appeals dismissed.
Athanassia Bitzakidis and Christian Baillargeon, for the appellant/respondent Commission des droits de la personne et des droits de la jeunesse.
Mathieu Bouchard and Catherine Elizabeth McKenzie, for the respondent/appellant Javed Latif.
Michel Sylvestre, Andres Garin and Sébastien Beauregard, for the respondent Bombardier Inc. (Bombardier Aerospace Training Center).
Andrew K. Lokan and Jean‑Claude Killey, for the intervener the Canadian Civil Liberties Association.
Philippe Dufresne and Sheila Osborne‑Brown, for the intervener the Canadian Human Rights Commission.
Selwyn Pieters and Aymar Missakila, for the intervener the Center for Research‑Action on Race Relations.
Faisal Bhabha, Khalid M. Elgazzar and Faisal Mirza, for the interveners the National Council of Canadian Muslims and the Canadian Muslim Lawyers Association.
Ranjan K. Agarwal and Preet K. Bell, for the intervener the South Asian Legal Clinic of Ontario.
English version of the judgment of the Court delivered by
Wagner and Côté JJ. —
I. Introduction
[1] Discrimination can take a variety of forms. Although some of them are easy to identify, others are less obvious, such as those that result from unconscious prejudices and stereotypes or from standards that are neutral on their face but have adverse effects on certain persons. The Charter of human rights and freedoms, CQLR, c. C‑12 (“Charter”), prohibits the various forms of discrimination and creates a remedy for victims of discrimination.
[2] The case at bar gives the Court its first opportunity to consider a form of discrimination allegedly arising out of a decision of a foreign authority. In this case, a Canadian company refused to provide pilot training to an individual on the basis of a decision by U.S. authorities. It is argued that the U.S. authorities’ decision was the result of racial profiling and that the company discriminated against the individual in question by relying on that decision.
[3] In our opinion, the context of this case and the fact that racial profiling is recognized as a prohibited form of discrimination do not change the two‑step process that applies in the context of a complaint under the Charter. Under s. 10 of the Charter, a plaintiff must establish three elements, including a connection between a prohibited ground of discrimination and the distinction, exclusion or preference of which he or she complains. A plaintiff who successfully establishes these elements will be said to have proven a prima facie case of discrimination or to have made prima facie proof of discrimination. In such a case, it will then be open to the defendant to try to justify a seemingly discriminatory measure, and if the defendant succeeds in doing so, the tribunal will find no violation under s. 10. Although this process successively imposes separate burdens of proof on the plaintiff and the defendant, and the onus on the plaintiff is simply to prove a “connection” between a prohibited ground of discrimination and the differential treatment he or she receives, it does not create an exception to the standard of proof — proof on a balance of probabilities — that normally applies in the civil law. The plaintiff must therefore establish prima facie discrimination on the basis of that standard.
[4] In this case, it has not been shown on a balance of probabilities that there is a connection between a prohibited ground of discrimination and the company’s decision to deny the individual’s training request. The company’s liability has therefore not been proven under s. 10 of the Charter. We would accordingly dismiss the appeals.
II. Facts
[5] The aerospace division of Bombardier Inc. (“Bombardier”), through the Bombardier Aerospace Training Center, operates two centres, in Montréal and Dallas, at which pilots are trained on the types of aircraft produced by Bombardier. This training is offered to pilots holding licences issued by various — national or international — authorities, including Canada and the United States. Bombardier holds a training certificate from the U.S. Federal Aviation Administration (“FAA”) under which it is authorized to provide the necessary training to pilots holding U.S. licences.
[6] In the wake of the terrorist attacks of September 11, 2001, the United States implemented enhanced security measures, including in the aviation field. In November 2001, the U.S. Congress passed the Aviation and Transportation Security Act, Pub. L. 107‑71, 115 Stat. 597 (2001), s. 113 of which (adding 49 U.S.C. § 44939), required that any organization wishing to provide pilot training to an individual who was not a U.S. citizen submit the individual’s name to the responsible authorities for security screening: Screening of Aliens and Other Designated Individuals Seeking Flight Training, 68 Fed. Reg. 7313 (2003); U.S. Department of Transportation, FAA Notice N 8700.21, Screening of Aliens and Other Designated Individuals Seeking Flight Training, Exhibit P‑29, A.R. (Commission), vol. XII, at pp. 107‑9. That security screening was carried out by the U.S. Department of Justice (“DOJ”) until the end of September 2004.
[7] An American statute passed in December 2003, the Vision 100 — Century of Aviation Reauthorization Act, Pub. L. 108‑176, 117 Stat. 2490 (2003) (“Vision 100 Act”), established stricter security screening requirements and transferred control over security screening to the Department of Homeland Security (“DHS”), or more specifically to the Transportation Security Administration (“TSA”). DHS promulgated a rule to implement these stricter requirements in September 2004: Flight Training for Aliens and Other Designated Individuals; Security Awareness Training for Flight School Employees, 69 Fed. Reg. 56324 (2004). This rule also established TSA’s security screening program, known as the Alien Flight Student Program (“AFSP”).
[8] No similar measure was adopted by Canada with respect to the training of pilots holding Canadian licences.
[9] Javed Latif, a Canadian citizen born in Pakistan, has been flying planes since 1964. He has held a U.S. pilot’s licence since 1991. Under that licence, he has taken many initial and recurrent training courses from Bombardier among others. He obtained his Canadian pilot’s licence in 2004. His unblemished career record is described in greater detail in the decision at first instance.
[10] In 2003, Mid East Jet offered Mr. Latif work flying a Boeing 737 under his U.S. licence. To obtain that contract, Mr. Latif registered for initial training on that aircraft. In October 2003, DOJ issued him a security clearance. He then took his training in the United States with a company called Alteon and obtained his certification in December 2003. Unfortunately, the job opportunity with Mid East Jet fell through.
[11] In January 2004, Mr. Latif, who was unemployed at the time, accepted a friend’s offer to go to Pakistan to participate in a real estate project. In March 2004, while he was still in Pakistan, he received an offer from ACASS Canada Ltd. (“ACASS”) to pilot a Bombardier Challenger 604 (“CL604”) aircraft.
[12] Mr. Latif initially registered for recurrent training on the CL604 under his U.S. licence at Bombardier’s Dallas training centre. A request for the required security clearance was submitted to DOJ while he was in Pakistan in early March 2004. Because of a delay in receiving that clearance and because he did not want to lose the job opportunity, Mr. Latif asked ACASS to register him for recurrent training on the CL604 under his Canadian licence, given that it would also be possible for him to obtain the contract as a pilot under that licence.
[13] In April 2004, ACASS informed Mr. Latif that Bombardier had received an unfavourable reply to his security screening request from the U.S. authorities, which meant that he could not receive the training from Bombardier under his U.S. licence. No explanation for the U.S. authorities’ refusal was provided at that time. Mr. Latif was surprised and thought that the refusal was due to an identification error.
[14] He contacted Steven Gignac, the manager responsible for quality standards at Bombardier, to follow up on his request for training under his Canadian licence, which he believed was not subject to security screening by the U.S. authorities. After first telling Mr. Latif that he had to check with Transport Canada, Mr. Gignac eventually informed him that Bombardier could not train him under his Canadian licence. Mr. Gignac also informed ACASS in a letter dated May 12, 2004 that the reasons for the U.S. authorities’ refusal to authorize the training had not been disclosed to Bombardier but that, because of the training certificate issued by the FAA, Bombardier had to comply with DOJ’s denial for all types of pilot training.
[15] The parties agreed that Bombardier’s refusal to provide training to Mr. Latif under his Canadian licence was based solely on the fact that DOJ had not issued him a security clearance. This case arises out of that refusal by Bombardier to train Mr. Latif under his Canadian licence.
[16] As a result of Bombardier’s refusal to give him the training he wished to receive, Mr. Latif asked the U.S. authorities to review his file. He received the following reply:
In October 2003, we based our decision to allow you to train based on the information we had at that time. In March 2004, we again based our decision on all the data we collected, which included new information. In your opinion the circumstances had not changed in six months; we disagree. The denial decision was made after extensive analysis of the data received. This process is in place to protect the national security of the U.S. There is no appeals process for non‑U.S. citizens. [Emphasis added.]
(Correspondence with U.S. authorities, Exhibit JL‑14, A.R. (Commission), vol. XVI, at p. 72)
[17] In spite of that reply, Mr. Latif made other requests to the U.S. authorities to have his file reviewed, but he was unsuccessful each time. He also made other requests under his U.S. licence for training on various types of aircraft, but they were all denied on the ground that he posed a threat to aviation or national security in the United States, except his last request in 2008, which was finally accepted.
[18] Being of the view that Bombardier had discriminated against him, Mr. Latif filed a complaint with the Commission des droits de la personne et des droits de la jeunesse (“Commission”). After investigating, the Commission initiated proceedings in the Human Rights Tribunal (“Tribunal”) in which it alleged that Bombardier [translation] “[had] impair[ed] the right of the complainant, Javed Latif, to avail himself of services ordinarily offered to the public without discrimination based on ethnic or national origin by denying him pilot training for a Canadian licence, contrary to sections 10 and 12 of the Charter ”: A.R. (Commission), vol. I, at p. 155. The Commission further alleged that, in so doing, Bombardier had “impair[ed] the complainant’s right to the safeguard of his dignity and reputation without distinction or exclusion based on ethnic or national origin, contrary to sections 4 and 10 of the Charter”: ibid.
[19] In July 2008, while the application to the Tribunal was pending, the U.S. authorities finally lifted the prohibition on Mr. Latif’s training without providing any details or explanation.
III. Judicial History
A. Human Rights Tribunal, 2010 QCTDP 16
[20] The Tribunal noted that the burden was on the Commission to establish discrimination under s. 10 of the Charter on a balance of probabilities, and that to do so, it had to prove three elements: [translation] “(1) a ‘distinction, exclusion or preference’, (2) based on one of the grounds listed in the first paragraph, (3) which ‘has the effect of nullifying or impairing’ the right to full and equal recognition and exercise of a human right or freedom” (paras. 231-32 (CanLII)).
[21] The Tribunal found first that in this case, [translation] “the refusal to train Mr. Latif under his Canadian licence did not depend directly on his Pakistani origin, but on the refusal of the US authorities to give him security clearance”: para. 284.
[22] To determine whether, as the Commission maintained, the measures put in place by the United States had directly targeted or mainly affected Arabs and Muslims, the Tribunal continued its analysis by referring to an expert report that had been filed by the Commission. The report had been prepared by Professor Reem Anne Bahdi, whom the Tribunal had qualified as an expert in racial profiling for the purposes of the case. According to the Tribunal, Ms. Bahdi’s report and testimony showed that, since September 11, 2001, several U.S. administrative agencies had engaged in racial profiling against people of Arab origin, Muslims or people from Muslim countries. The Tribunal held that the U.S. authorities’ decision with respect to Mr. Latif’s request had been made in that context.
[23] The Tribunal found that Bombardier’s denial of Mr. Latif’s request had thus had the effect of creating, in his regard, a distinction based on one of the prohibited grounds of discrimination, namely ethnic or national origin, which had in turn had the effect of impairing his right to full and equal recognition and exercise of his rights guaranteed by the Charter. It concluded on this basis that the Commission had [translation] “discharged its burden of adducing prima facie proof of discrimination”: para. 315.
[24] The Tribunal then rejected the two justifications advanced by Bombardier, the first being that it had refused to train Mr. Latif for security reasons, while the second was based on the financial consequences that could result from revocation of the training certificate issued to Bombardier by the FAA.
[25] As a result, the Tribunal ordered Bombardier to pay Mr. Latif $25,000 in moral damages and $309,798.72 in U.S. currency in damages for material prejudice, from which $66,639 in Canadian currency was to be subtracted. It also ordered Bombardier to pay Mr. Latif $50,000 in punitive damages on the ground that Mr. Gignac had acted intentionally and unlawfully and had had Bombardier’s full consent in acting as he did. Finally, the Tribunal ordered Bombardier to [translation] “cease applying or considering the standards and decisions of the US authorities in ‘national security’ matters when dealing with applications for the training of pilots under Canadian pilot’s licences”: p. 81 (CanLII).
B. Quebec Court of Appeal, 2013 QCCA 1650, [2013] R.J.Q. 1541
[26] The Court of Appeal proceeded on the assumption that the exclusion of Mr. Latif had in fact occurred, but it held that the Commission had not shown a causal connection between the exclusion and a prohibited ground. The Court of Appeal acknowledged that such a connection can be proven by way of circumstantial evidence or of presumptions, but it found that there was no such proof in this case.
[27] In the Court of Appeal’s opinion, because Bombardier’s decision had been based solely on the decision of the U.S. authorities, the Tribunal could not find that Bombardier had discriminated against Mr. Latif without proof that the decision in question was itself based on a ground that is prohibited under the Charter. Finding that there was no such proof, the Court of Appeal set aside the Tribunal’s decision.
IV. Issues
[28] This case raises the following questions:
1. What is “prima facie” discrimination, and what degree of proof is required in order to establish it?
2. Has prima facie discrimination on Bombardier’s part been proven?
3. Was the mandatory order against Bombardier justified?
V. Analysis
A. What Is “Prima Facie” Discrimination, and What Degree of Proof Is Required in Order to Establish It?
[29] It will be helpful to begin by recalling the Charter’s place in Quebec’s legislative hierarchy and the principles of interpretation that flow from it.
[30] This Court has confirmed that the Charter, like the human rights legislation of the other provinces, has a special quasi‑constitutional status: Béliveau St‑Jacques v. Fédération des employées et employés de services publics inc., [1996] 2 S.C.R. 345, at p. 402, reproduced in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), 2000 SCC 27, [2000] 1 S.C.R. 665 (“City of Montréal”), at para. 28; see also de Montigny v. Brossard (Succession), 2010 SCC 51, [2010] 3 S.C.R. 64, at para. 45. Indeed, unless otherwise provided, ss. 1 to 38 of the Charter prevail over other Quebec statutes: s. 52 of the Charter . Furthermore, s. 53 of the Charter provides that, “[i]f any doubt arises in the interpretation of a provision of the Act, it shall be resolved in keeping with the intent of the Charter.”
[31] The Charter must therefore be given a liberal, contextual and purposive interpretation: see, inter alia, Béliveau St‑Jacques, at p. 402. The Court also favours a consistent interpretation of the various provincial human rights statutes unless a legislature intends otherwise: New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc., 2008 SCC 45, [2008] 2 S.C.R. 604, at para. 68; City of Montréal, at para. 45. Finally, although the Charter’s provisions need not necessarily mirror those of the Canadian Charter of Rights and Freedoms (“Canadian Charter ”), they must be interpreted in light of the latter: City of Montréal, at para. 42.
[32] For more than 30 years, the Court has recognized that discrimination can take various forms, including “adverse effect” or “indirect” discrimination: Ontario Human Rights Commission v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536 (“O’Malley”), at p. 551. It has found that adverse effect discrimination comes within the purview of the Charter on the basis of the language of s. 10, which provides, inter alia: “Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing [the right to equality]” (Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525, at p. 540; see also Forget v. Quebec (Attorney General), [1988] 2 S.C.R. 90; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712). The Court has also held that discrimination can be systemic: Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114.
[33] The Commission submits that in the case at bar, Mr. Latif was a victim of racial profiling. The concept of racial profiling was originally developed in the context of proceedings brought against the police for abuse of power, but it has since been extended to other situations:
Racial profiling is any action taken by one or more people in authority with respect to a person or group of persons, for reasons of safety, security or public order, that is based on actual or presumed membership in a group defined by race, colour, ethnic or national origin or religion, without factual grounds or reasonable suspicion, that results in the person or group being exposed to differential treatment or scrutiny.
Racial profiling includes any action by a person in a situation of authority who applies a measure in a disproportionate way to certain segments of the population on the basis, in particular, of their racial, ethnic, national or religious background, whether actual or presumed. [Emphasis added.]
(Commission des droits de la personne et des droits de la jeunesse, Racial Profiling: Context and Definition (2005) (online), at p. 13; see also Ontario Human Rights Commission, Policy and guidelines on racism and racial discrimination (2005) (online), at p. 19.)
[34] The language of the Charter permits the courts to take note of new forms of discrimination as they emerge in our society. This being said, whatever form discrimination takes, the two‑step analysis applicable to a complaint under the Charter does not change.
[35] First, s. 10 requires that the plaintiff prove three elements: “(1) a ‘distinction, exclusion or preference’, (2) based on one of the grounds listed in the first paragraph, and (3) which ‘has the effect of nullifying or impairing’ the right to full and equal recognition and exercise of a human right or freedom” (Forget, at p. 98; Ford, at pp. 783‑84; Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790, at p. 817; Bergevin, at p. 538).
[36] If these three elements are established in accordance with the degree of proof we will specify below, there is “prima facie discrimination”. This is the first step of the analysis.
[37] Second, the defendant can then, also in accordance with the degree of proof we will indicate below, justify his or her decision or conduct on the basis of the exemptions provided for in the applicable human rights legislation or those developed by the courts. If the defendant fails to do so, discrimination will then be found to have occurred: McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4, [2007] 1 S.C.R. 161 (“McGill”), at para. 50; see also Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360 (decided under British Columbia’s human rights code), at para. 33. This is the second step of the analysis.
[38] For example, s. 20 of the Charter provides that a distinction, exclusion or preference based on the aptitudes required for an employment is deemed to be non‑discriminatory. This is referred to as the “bona fide occupational requirement” (“BFOR”) defence, which can be found in one form or another in all human rights legislation in Canada. In British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 (“Meiorin”), at para. 54, this Court developed an approach for determining whether a prima facie discriminatory standard or practice is a BFOR in the context of British Columbia’s human rights code. The principles from that case were subsequently applied to s. 20 of the Charter: Gaz métropolitain inc. v. Commission des droits de la personne et des droits de la jeunesse, 2011 QCCA 1201, at paras. 39‑42 (CanLII); see also McGill.
[39] In light of our conclusion on the issue of prima facie discrimination in the instant case, we need not dwell any further on the second step of the analysis. However, we will now discuss the first step.
(1) Elements of Prima Facie Discrimination
[40] Before we consider the three elements of discrimination, we believe it will be helpful to point out that under both Canadian law and Quebec law, the plaintiff is not required to prove that the defendant intended to discriminate against him or her:
To . . . hold that intent is a required element of discrimination under the Code would seem to me to place a virtually insuperable barrier in the way of a complainant seeking a remedy. It would be extremely difficult in most circumstances to prove motive, and motive would be easy to cloak in the formation of rules which, though imposing equal standards, could create . . . injustice and discrimination by the equal treatment of those who are unequal . . . . [Citations omitted; O’Malley, at p. 549.]
(See also Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at p. 173; City of Montréal, at para. 35; Commission des droits de la personne du Québec v. Ville de Québec, [1989] R.J.Q. 831 (C.A.), at pp. 840‑41, leave to appeal refused, [1989] 2 S.C.R. vi.)
[41] Not requiring proof of intention applies logically to the recognition of various forms of discrimination, since some discriminatory conduct involves multiple factors or is unconscious.
[42] The first element of discrimination is not problematic. The plaintiff must prove the existence of differential treatment, that is, that a decision, a measure or conduct “affects [him or her] differently from others to whom it may apply”: O’Malley, at p. 551. This might be the case, for example, of obligations, penalties or restrictive conditions that are not imposed on others: ibid.; see also Andrews, at pp. 173‑74.
[43] As we will see below, the second element is central to the dispute in the instant case. The plaintiff must establish that the distinction, exclusion or preference in question is “based” on one of the grounds listed in s. 10 of the Charter: City of Montréal, at para. 84; McGill, at paras. 45 and 49‑50. This element presupposes a connection between the differential treatment and a prohibited ground. Given that there is no consensus regarding the nature of this connection, it needs to be clarified.
[44] In the case at bar, the Tribunal held that it is not necessary for the prohibited ground being relied on by a plaintiff to be the sole cause of the impugned act, as that act may be explained by a variety of reasons. The Tribunal found t