Aug 7, 2014

Originally published on January 28, 2011 on the Alexander Holburn Beaudin + Lang LLP Aviation Law Blog: http://aviationlawblog.ahbl.ca/

Author: Alexander Holburn Beaudin + Lang LLP


In a recent decision, the Quebec Human Rights Tribunal ruled that the Bombardier Aerospace Training Centre (“BATC”) had discriminated against a pilot by denying him services on the basis of his racial origins. Bombardier (a Canadian aircraft manufacturer) operates BATC, which is certified to offer pilots ground school and simulator training for Canadian, U.S. and European ratings on various types of Bombardier aircraft.

Mr. Javed Latif (the pilot) is a dual citizen of Canada and Pakistan. He has 25 years of experience flying business jets, including the Bombardier Challenger 601 and 604 aircraft on which he received his initial type rating from BATC. Mr. Latif obtained his U.S. pilot’s license in 1991 and his Canadian pilot’s license in 2003.

In March of 2004, Mr. Latif received an offer of employment as a Challenger 604 pilot subject to completion of refresher training on the aircraft. He applied to BATC for the necessary training to refresh his type rating on his U.S. pilot’s license.

Since 9/11, the U.S. Department of Homeland Security has required that pilots licensed in the U.S. who are not U.S. citizens must obtain security clearance from the United States Department of Justice for any accreditation. Mr. Latif’s application for a security clearance was denied.

Mr. Latif then applied to BATC for the necessary training to endorse his Canadian pilot’s licence. BATC took the position that any pilot who had been refused security clearance by U.S. authorities was prohibited from pursuing training under any other license, including a Canadian pilot’s license. BATC insisted that it was obliged to comply with and abide by all applicable laws and regulations issued by U.S. authorities, failing which it would lose its certification to provide pilot training services to U.S. pilots. Although the U.S. authorities took the position that Mr. Latif posed a threat to U.S. aviation and U.S. national security, BATC had no particular knowledge of the basis for their concern.

Transport Canada expressed no objection to Mr. Latif’s recurrent training on his Canadian pilot’s license.

The Tribunal dismissed BATC’s defence that it could not assume the risk to Canadian aviation security of training Mr. Latif, who had been declared a threat to national security by U.S. authorities. Pointing out that Transport Canada had imposed no security clearance requirements on Mr. Latif, the Tribunal observed that BATC had no justification to impose security standards imported from the United States. Not only had BATC no specific knowledge of the reasons for the U.S. denial of the security clearance, but it had made no inquiry of its own in that regard.

Counsel for BATC argued that the risk of terrorism has no borders and that it was in the interest of Canadian aviation safety to recognized U.S. security actions. The Tribunal rejected this argument in favour of the traditional human rights approach of permitting discrimination only where there was a rational and reasonable justification for it. A blanket denial of security clearance by U.S. authorities did not afford BATC a reasonable or rational justification for refusing training to Mr. Latif under his Canadian pilot’s license.

By extrapolation, this decision may impact on the approach taken by Canadian airlines who are faced with the decision of whether or not to carry a passenger when the only concern which they have is a decision by U.S. authorities that the passenger is a security risk.