Sep 21, 2015

Human rights law is one of the most fast-evolving and dynamic areas of law. With the fabric of Canadian society evolving at a rapid pace, legislators and decision makers are grappling with increasingly nuanced and socially sensitive human rights disputes. The need for a clear, concise, and coherent approach to discrimination is therefore paramount.

The Supreme Court of Canada (“SCC”) recently took the opportunity to address some of these issues in Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc (Bombardier Aerospace Training Centre), 2015 SCC 39 [Bombardier]. This case is first and foremost an important decision in the field of human rights law, clarifying a number of procedural points for the benefit of tribunals across the country. However, what makes this decision curious from an administrative law perspective is the way in which the SCC engaged with the facts and evidence at play in dismissing the complainant’s appeal.

Understanding Human Rights Legislation

The doctrinal approach to human rights violations involves a two-stage inquiry with a shifting burden—an approach which is more or less standard across the various provincial and federal human rights statutes. The complainant (or applicant) has the initial burden of establishing prima facie discrimination, made up of three elements:

  • a distinction, exclusion or preference;
  • which is based on one or more of the grounds outlined in the applicable statutory provision; and
  • which has the effect of nullifying or impairing the right to full and equal recognition and exercise of a human right or freedom.

Should this be established, the burden then shifts to the respondent, who has the chance to justify her conduct or decision on the basis of one of the exceptions provided for in the applicable human rights statute. If she fails to do so at this stage, the complainant will be successful in establishing her case of discrimination.

Facts and Judicial History

Javed Latif, the complainant, is a Pakistani-born pilot, holding both Canadian and American licences. After seeking specialized training at the Bombardier Aerospace Training Centre in Dallas, Mr. Latif was required to undergo special security screening from the US Department of Justice (the “DOJ”). Despite having been approved in the past, Mr. Latif received an unfavourable reply from the DOJ, and was ineligible to apply to the program under his US licence. The response given to him appeared to indicate national security concerns, although the precise reason for the denial was not specified.

Consequently, Mr. Latif sought training from Bombardier’s training centre in Montreal through his Canadian licence, which he believed was not subject to security screening by the US authorities. To his surprise, however, Bombardier refused to provide this training “solely on the fact that the DOJ had not issued him a security clearance” (Bombardier, para 15) [emphasis added]. Mr. Latif made numerous other requests to the US authorities to have his file reviewed, and after several unsuccessful attempts, was finally granted security clearance in 2008.

At the same time, Mr. Latif also filed a complaint with the Commission des droits de la personne et des droits de la jeunesse (the “Commission”), which brought forward the human rights dispute on his behalf, before the Human Rights Tribunal (the “Tribunal”; see Commission des droits de la personne et des droits de la jeunesse v Bombardier Inc (Bombardier Aerospace Training Center), 2010 QCTDP 16). After an investigation, the Tribunal found that Bombardier had violated section 10 of the Quebec Charter of human rights and freedoms, CQLR, c C‑12 [Charter] with respect to Mr. Latif’s human rights. First, the Tribunal accepted that the refusal to train the complainant depended directly on the DOJ’s security decision. After considering expert reports relating to racial profiling against Muslims or people from Muslim countries from certain US administrative agencies (the “Bahdi Report”), the Tribunal found that “Bombardier’s denial of Mr. Latif’s request had thus had the effect of creating… 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 a full and equal recognition and exercise of his rights guaranteed by the Charter” (Bombardier, para 23). Having rejected the two justifications advanced by the respondent, the Tribunal ordered damages totaling over $300,000 in favour of the complainant.

The respondent succeeded in its appeal before the Quebec Court of Appeal, 2013 QCCA 1650 which unanimously found a lack of causal connection between the complainant’s refusal—the alleged discriminatory act—and the prohibited ground. Despite acknowledging that such a connection can be established by way of circumstantial evidence or presumptions, there was simply an absence of proof in this case.

The SCC’s Clarification of the Elements of Prima Facie Discrimination

In the first part of their joint reasons, Justices Wagner and Côté addressed the court’s approach to prima facie discrimination, considering both its elements and the requisite degree of proof.

A live issue on appeal was the second element of discrimination; that the impugned distinction or exclusion (as set out in the first element) be “based” on one of the enumerated grounds. The SCC correctly ruled that there needs to be a “connection” between the distinction and the ground. Of significant importance was the holding that this connection need not be “close” or “causal”. Indeed, the Quebec Court of Appeal’s “causal connection” requirement was deemed too heavy a burden on the complainants, and inconsistent with the case law on the point (see Peel Law Association v Pieters, 2013 ONCA 396, para 59 [Pieters]). Instead, all that needs to be established is that the alleged ground was a factor—and not the causal or most significant factor—in the respondent’s conduct.

The SCC also confirmed that the burden imposed on the complainant must be established on a balance of probabilities; the same standard that applies in ordinary civil matters. However, the unanimous bench did note that the Tribunal is “not bound by the special rules of evidence applicable in civil matters,” and that it may admit various forms of evidence to establish discrimination—including circumstantial evidence, hearsay, and presumptions. These relaxed evidentiary rules make it easier for complainants to establish human rights breaches where there is no smoking gun or direct evidence of discrimination.

Establishing a Prima Facie Case of Discrimination – Assessing the Sufficiency of the Evidence under a Reasonableness Standard

In my opinion, however, the crux of the decision relates to the SCC’s review of the evidence, its application of the restated prima facie test for discrimination, and in particular, the requirement to adduce sufficient evidence to establish a connection between the prohibited ground and the adverse effect.

As an administrative tribunal, the Adjudicator’s decision is not subject to appeal, but rather to a judicial review. The proper standard of review for such decisions is the deferential standard of reasonableness; because the tribunal has “specialized expertise” in the area of human rights law, it should be accorded “the highest degree of deference with respect to its determinations of fact and the interpretation and application of human rights law” (see Shaw v Phipps, 2010 ONSC 3884, para 10 [Shaw], emphasis added; see also Dunsmuir v New Brunswick, [2008] 1 SCR 190, para 41 [Dunsmuir]). This was the standard adopted by the SCC in its analysis of Mr. Latif’s judicial review (Bombardier, paras 72-73).

Under the reasonableness standard, deference ought to be given to tribunal findings of fact and the inferences drawn from the finding of law, which should only be set aside if found unreasonable. In Administrative Law, 5th ed (Markham: LexisNexis, 2011) at page 219, Sara Blake notes that “so long as there was some evidence to support a material finding of fact, a court will not review the evidence considered by the tribunal to determine whether it was sufficient.” However, with the issue framed by the respondent as one of “mixed fact and law” (Bombardier, paras 71-72), however, the SCC took the opportunity to undertake a deeper and more involved review of the facts that underlay the Tribunal’s decision. Its careful weighing of the evidence and its application of the restated test for prima facie discrimination seemed to depart from the deferential standard of review, as laid out in Dunsmuir, and shows a bench more willing to engage with the factual and evidentiary context underlying the dispute before it.

This is all the more interesting when we take into account two recent Ontario Court of Appeal (“OCA”) decisions, involving many of the same issues. In both Shaw and Pieters, the respective applicants sought to have the OCA reassess the way in which the Tribunal weighed the evidence vis-à-vis the test for prima facie discrimination. In both those decisions, the unanimous benches refused to interfere with the adjudicator’s assessment of whether the evidence demonstrated a connection between the impugned distinction or exclusion and the protected ground. In Shaw, Justice Lang went as far as to point out that:

“The appellants’ argument amounts to an attack on the Adjudicator’s factual findings and the inferences she drew from those findings. As the Divisional Court observed, those findings are entitled to considerable deference”(Shaw, para 25).

A similar statement was made in Pieters, with Justice Juriansz appearing unimpressed by the Divisional Court’s lack of deference to the trier of fact, particularly with respect to the weighing of social science evidence (Pieters, para 122). On both occasions, the OCA upheld the factual assessments of the respective adjudicators in relation to whether the evidence amounted to prima facie discrimination.

Conversely, the SCC in Bombardier appears to have departed from this more deferential approach, as adopted by the OCA in both Pieters and Shaw, particularly given the evidentiary issues and their relation to the restated test for prima faciediscrimination. Throughout paragraphs 70-100, Justices Wagner and Côté undertook a fairly thorough review of the evidence heard before the Tribunal, in eventually finding a lack of connection between the alleged discriminatory conduct and the impugned ground.

In its assessment, the SCC put forward a very persuasive set of arguments supporting its application of the “reasonableness standard.” The Bahdi Report, on which the Commission relied heavily, may have been a strong indicator of systemic discrimination in certain national-security related programs, but does not demonstrate on a balance of probabilities that Mr. Latif’s security denial in particular was motivated by these discriminatory factors. The other circumstantial evidence may also have given some apprehension of discriminatory conduct, but again, appeared insufficient to meet the test for discrimination. This is not to suggest that Mr. Latif was not discriminated against; rather, the way in which the facts were presented and found at first instance did not provide sufficient support for the complainant’s case.

Conclusion

What makes this case particularly interesting is not the result, but rather the approach taken to achieve the result. After properly restating and clarifying the test for prima facie discrimination, the unanimous bench appeared much more prepared to engage with the facts of the case, as opposed to having the evidence reassessed in a new hearing. In this way, the SCC appears to depart from a deferential approach to judicial review—the one espoused by the OCA in Shaw and Pieters. Whether this marks the beginning of a trend remains to be seen, but those with an interest in administrative law will surely take note of this decision and speculate as to whether this marks a new trend for Canada’s highest court going forward