NCCM welcomes Supreme Court decision affirming the correct legal test for discrimination across Canada

Case points to the need for greater transparency in national security designations

(Ottawa – July 23, 2015) The National Council of Canadian Muslims (NCCM) welcomes several aspects of today’s Supreme Court of Canada (SCC) judgment in a case of alleged discrimination against a Canadian Muslim pilot. The judgment highlights the need for more transparency in how Canadians are designated national security threats and what redress is available to remedy the adverse impact of discriminatory designations.

The NCCM appeared as a public interest intervener in the case, Commission des droits de la personne et des droits de la jeunesse, et al. v. Bombardier Inc. (Bombardier Aerospace Training Center), et al. In a joint submission, the NCCM and the Canadian Muslim Lawyers’ Association (CMLA) argued that the test employed by the Quebec Court of Appeal was too stringent.

The allegation of discrimination centred on Bombardier’s decision to refuse specialized flight training in Canada to an experienced pilot following a false security designation by U.S. authorities.  Mr. Latif and the Quebec Human Rights Commission (QHRC) successfully challenged Bombardier’s decision as discriminatory before the Quebec Human Rights Tribunal.  The finding was overturned by the Quebec Court of Appeal, which found that Mr. Latif had failed to establish a causal link between Bombardier’s decision to deny him training and the fact that he was a Muslim of Pakistani heritage. Mr. Latif and the QHRC appealed the case to the Supreme Court of Canada (SCC).

While the SCC upheld the Court of Appeal’s conclusion that there was insufficient evidence of discrimination, it rejected that court’s analysis for making it too difficult to prove discrimination. In doing so, the SCC affirmed the long established test, which requires proof that discriminatory considerations (based on race, gender, religion, sexual orientation, disability, etc.) be a factor in, but not necessarily the cause of, a decision to deny service.

The unanimous ruling, written by two SCC justices from Quebec, clarified that under human rights law a company cannot “blindly comply with a discriminatory decision of a foreign authority without exposing itself to liability.”

“Even though Mr. Latif did not succeed, the SCC rejected the Quebec Court of Appeal’s reasoning, which raised the bar too high for making out a case of discrimination. We now have clarity that the same test for discrimination applies across the country,” says Faisal Bhabha, NCCM’s legal counsel. “The SCC accepted the arguments advanced by the NCCM and the CMLA that the test set out by the Quebec Court of Appeal for establishing discrimination was overly stringent.”

“This finding is important for Canadians that are denied airline service in Canada on the basis of the US No Fly list. We are pleased to see that the Supreme Court has confirmed that companies and institutions that blindly comply with the discriminatory decisions of foreign authorities can be held liable for that discrimination,” adds Khalid Elgazzar, co-counsel for NCCM.

“However, Mr. Latif’s unsuccessful complaint highlights the very real concern that Canadians who are the subject of false security designations have no ability to see or challenge the information underlying such designations, thereby restricting their ability to clear their names or to gather the evidence required to expose discrimination,” says Mr. Elgazzar. “In any security regime that has the potential to affect an individual’s rights or freedoms, lawmakers should ensure that robust, transparent and comprehensive oversight, review and redress mechanisms are in place.”

This is the fourth case in which the NCCM has intervened before the Supreme Court of Canada. Last year, the NCCM intervened in the case of Canada (Citizenship and Immigration) v. Harkat on the issue of security certificatesPreviously, the NCCM intervened in the SCC cases of R. v. N.S. on the issue of providing testimony while wearing niqab and Adil Charkaoui v. Minister of Citizenship and Immigration also on the issue of the security certificate process.

CONTACT: Amira Elghawaby, Communications Director, 613.254.9704