Supreme Court to Hear Appeal regarding Alleged Discrimination by Bombardier against Pakistani-Canadian Pilot

Uncle Sam

In May 2014, the Supreme Court of Canada agreed to hear an appeal from the decision of the Quebec Court of Appeal in Bombardier Inc. v. Commission des droits de la personne et des droits de la jeunesse, 2013 QCCA 1650.  In its decision, the Court of Appeal had overturned a decision of the Quebec Human Rights Tribunal finding that Bombardier discriminated against a pilot of Pakistani descent in refusing him entry into a pilot training program.

In 2003, Javed Latif, a Canadian pilot with 25 years’ experience and in possession of both Canadian and US pilot’s licenses, applied to a pilot training program at the Bombardier Aerospace Training Center in Dallas, Texas.  As a non-US citizen, he was required to undergo security screening by the US Department of Justice under the Alien Flight Students Program (AFSP), which had been implemented following the events of September 11, 2001.  He was approved, but did not actually enroll in the program at the time.

In 2004, however, Mr. Latif was offered a new job and needed to obtain training on a particular type of aircraft he had not previously flown.  Before he could enroll in the program, he was required to undergo a second screening.  This time, he was denied on the basis that he was considered a threat to US national security.  He believed it was a case of mistaken identity, and attempted to have the decision overturned.  He was unsuccessful.

He then applied to the other Bombardier Aerospace Training Center, in Montreal.  Despite there being no similar Canadian screening process, Bombardier refused him entry on the basis that it was required to follow the US government’s decision.

Although the US reversed its decision in 2008, Mr. Latif launched a complaint before the Quebec Human Rights Tribunal alleging that Bombardier had discriminated against him when it denied him entry as a result of the US decision.  The Tribunal agreed.  It based its decision largely on the testimony of an expert witness who stated that the US government had engaged in racial profiling against Muslims and persons of Arabic descent in numerous post-9/11 anti-terrorism programs.  The Tribunal effectively concluded that the AFSP also involved racial profiling, and was of the view that for Bombardier to follow the US decision, without knowing its basis, was discriminatory.  It awarded Mr. Latif approximately $300,000 in damages, including $50,000 in punitive damages.  It also held that Bombardier was prohibited from relying on decisions of American authorities in matters of national security when considering applicants for admission to its Canadian program in the future.

The Court of Appeal overturned the Tribunal’s decision, finding there was no evidence that the US decision was the result of racial profiling or discrimination.  It reasoned that the AFSP did not target Muslim or Arab individuals; rather, it targeted all non-US citizens.  The Court also noted that many Muslim and Arab individuals had been approved for the program; in fact, only seven of several thousand applicants had been denied.  In addition, it observed that Mr. Latif was not Arab, and that although he was Muslim, he had not alleged discrimination on the basis of religion.

The Court also placed reliance on the fact that Mr. Latif had initially been approved for the program during a time when, according to the expert testimony, post-9/11 racial profiling was already widespread.  It concluded that a link could not be drawn between racial profiling in other US government programs and the AFSP, which itself had not been the subject of any expert testimony.

Although it was not necessary to consider any other issues, the Court also criticized the Tribunal’s award of punitive damages, finding that adopting the decision without knowing its foundation was not sufficient to conclude that Bombardier acted intentionally or with malice.  Similarly, it concluded that the Tribunal did not have the authority to order that Bombardier cease reliance on any decisions of US authorities on matters of national security, and that this order was unreasonable in any event.

As usual, the Supreme Court did not give reasons for granting leave to appeal the decision.  A date has not yet been set for the hearing, but it will likely occur sometime in 2015.