What about discrimination arising out of a decision of a foreign authority? In a unique case, the Supreme Court of Canada clarifies the notion of prima facie discriminationQuebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 (CanLII)
Bombardier refused training to a pilot born in Pakistan who held a Canadian licence on the basis of a decision by the U.S. authorities which denied security clearance. The plaintiff alleged racial profiling. The highest court in Canada found that the plaintiff failed to prove that the U.S. authorities' decision was based on his ethnic or national origin.
Bombardier operates two training centres, in Montréal and Dallas, where pilots can be trained to operate Bombardier aircraft. The training is offered to pilots holding licences issued by various authorities, including Canada and the United States. Mr. Javed Latif, a Canadian citizen born in Pakistan, has been flying airplanes since 1964 and held Canadian and U.S. pilot' s licences. He registered for training at Bombardier. His request for training was denied by Bombardier on the sole basis that he did not receive security clearance from the U.S. authorities.
The plaintiff alleged that he was a victim of racial profiling on the part of the U.S. authorities and that Bombardier acted as a conduit for their decision. The Human Rights Tribunal agreed and ordered Bombardier to pay damages to the plaintiff.
On appeal, the Supreme Court of Canada unanimously held that the Tribunal' s decision was unreasonable as there was insufficient evidence, either direct or circumstantial, to show that Mr. Latif 's ethnic or national origin had played any role in the U.S. authorities' unfavourable reply to his security screening request. A social context of discrimination against a group cannot be relied upon as a presumption that a specific decision made against a member of that group is necessarily based on a prohibited discriminatory ground. In the Court's view, this would amount to a reversal of the burden of proof.
In reaching its conclusion, the Supreme Court clarified the notion of “prima facie” discrimination, which corresponds to the first step in the analysis of any discrimination complaint. If prima facie discrimination is found, the employer then must prove that its decision was based on one of the exemptions provided in applicable human rights legislation.
Writing for the Court, Wagner and Côté JJ. reiterated that a plaintiff must prove three elements to satisfy the prima facie test:
- First, the plaintiff must prove the existence of differential treatment, i.e. that a decision, measure or conduct affected him or her differently from others.
- Secondly, the plaintiff must establish that the differential treatment (distinction, exclusion or preference) is based on one of the prohibited grounds of discrimination. This implies a “connection” between the differential treatment and a prohibited ground. The Court specifies that a “causal link” is not required. Rather, it must be shown that the prohibited ground in question was a factor in the distinction, exclusion or preference.
- Lastly, 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 human rights legislation.
For the first time, the Court clarified that these elements must be proven on a balance of probabilities, and not on the basis of a more relaxed burden of proof despite the confusion that may be created by the use of the expression “prima facie” . The latter must be understood as referring to the first step of the discrimination test and not as implying a lesser burden of proof for the plaintiff.
Ultimately, the Court found that the evidence was lacking to prove prima facie discrimination in this case because the record did not support a conclusion that Mr. Latif' s ethnic or national origin played any role in the U.S. authorities' denial of security clearance. However, the Court noted that this does not mean that a company can blindly comply with a discrimination decision of a foreign authority. The outcome of future cases will depend on the evidence that can be presented by plaintiffs to show that the foreign authority' s decision was connected or linked to a prohibited ground of discrimination. Such evidence may be difficult to present as foreign authorities will not necessarily, as in this case, disclose the reasons behind their decisions, particularly in matters relating to security.