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Quebec Court of Appeal overturns discrimination case

In a ruling that took human rights lawyers by surprise the Quebec Court of Appeal overturned a discrimination case against aeronautics multinational Bombardier Inc. after holding that there was no evidence that a Canadian pilot of Pakistani origin was a victim of ethnic discrimination.

The Quebec Human Rights Tribunal, in a precedent-setting ruling that held that Quebec human rights laws prevail over American anti-terrorism efforts in Canada, ordered the Montreal-based firm three years ago to pay Javed Latif $319,000 in damages after it found that the pilot’s human rights were violated when Bombardier barred him from flight training at a Montreal facility because U.S. authorities had designated him a security threat. The Tribunal also ordered Bombardier to cease respecting U.S. national security decisions when pilots are seeking flight training under Canadian licences.

But in a unanimous 40-page facts-specific decision that reviewed the evidence of the case, the Quebec Court of Appeal took issue with the fact that the Tribunal based its decision almost entirely on an expert report and testimony of University of Windsor law professor Reem Anne Bahdi. The report concluded that U.S. post 9/11 security measures are generally riddled with stereotypes about Muslims and persons of Arab origin, and therefore the decision to deny Latif must have also been discriminatory. The appeal court found the report was not scientifically objective and had numerous flaws and shortcomings.

“I find it difficult to see how we can allow ourselves to make a judgment that an anti-Arab or Islamaphobic sentiment in the U.S., following the events of September 11, 2001, would be sufficient to create the necessary causal link between the refusal of American authorities to issue a security certificate and (Latif’s) Pakistani nationality,” wrote Justice Marie St-Pierre in Bombardier inc. (Bombardier Aerospace Training Center) v. Commission des droits de la personne et des droits de la jeunesse, 2013 QCCA 1650. “In the relevant period (2003-2008), Bombardier trained a number of pilots of Arab, Muslim or Middle-Eastern descent who underwent the same security verifications and who received positive responses.”

But human rights experts are concerned that the Quebec Court of Appeal has as of late far too easily accepted motions for leave to appeal decisions issued by the Quebec Human Rights Tribunal, shown little deference to Tribunal rulings, and adopted rules of the Civil Code of Quebec to human rights matters.

“I have the impression that this case was treated as an ordinary commercial law matter that applied civil law rules,” observed Christian Brunelle, a law professor at the Université de Laval. “It ignored the quasi-constitutional status of the Quebec Charter of Human Rights and Freedoms, its distinct nature compared to civil law, and the importance of interpreting human rights violations generously and liberally. It worries me.”

Brunelle, who is conducting a study examining how decisions by the Tribunal fare before the Quebec Court of Appeal, is all the more concerned because there are clear signs that the appeal court “seems to have great interest” in hearing cases stemming from the Quebec Human Rights Tribunal — and does not hesitate to overturn them. The appeal court normally shows much deference over the appreciation of evidence made by judges of first instance, but “for reasons I cannot explain entirely” it seems to be far less reserved when it comes to reviewing evidence from Quebec Human Rights Tribunal decisions, said Brunelle.

Its penchant to apply a “civil law analysis grid” to decide human rights issues is equally disconcerting, with the result that they are more demanding in terms of causality, added Brunelle. The Bombardier decision is a case in point. While the Tribunal held that Latif’s ethnic origins played a role, “perhaps minimal but nevertheless a real one,” in the U.S. decision to blacklist him, the appeal court found that there was no such evidence. “The question then is what evidence is required to invoke discrimination or does one have to demonstrate causality,” asked rhetorically Brunelle. “Depending on what approach one takes, there are different consequences.”

That is an issue that the Court of Appeal of Ontario grappled with over the course of the summer in Peel Law Association v. Pieters, 2013 ONCA 396. In a 45-page ruling, the Ontario appeal court held that all that is required is that there be a “connection” between the adverse treatment and the ground of discrimination. In short, the ground of discrimination must somehow be a “factor” in the adverse treatment. “The Divisional Court’s requirement of a “causal nexus” or a “causal link” between the adverse treatment and a prohibited ground seems counter to the evolution of human rights jurisprudence, which focuses on the discriminatory effects of conduct, rather than on intention and direct cause,” said Justice R.G. Juriansz.

Thanks to the different tack taken by Quebec appeal court, Quebec human rights jurisprudence is developing “differently” compared to the rest of Canada, asserts Brunelle. “It gives the impression that the Quebec Charter, which is a quasi-constitutional law, is taken less seriously in Quebec regarding issues of discrimination than is the case elsewhere,” remarked Brunelle.

The Bombardier case raises yet more troubling issues, says Montreal lawyer Alain Lecours of Lecours & Hébert. Following the appeal court decision, it now seems that another nation can impose conditions on Canadian companies operating on Canadian soil, says Lecours. A Bombardier executive testified before the Tribunal that American authorities told him not to train Latif, and that if it did, there would be “serious consequences” for Bombardier. Justice Michele Rivet of the Tribunal criticized in her ruling Bombardier for taking the U.S. designation in faith and not trying to find out whether Latif was a security risk for Canadians. “Following this decision by the Quebec Court of Appeal, we now find ourselves in a situation where a foreign state can put pressure and impose conditions on Canadian enterprises here” in Canada, remarked Lecours.

That point of view is echoed by Catherine McKenzie, who represented Latif. “The way that Bombardier acted in this case by applying an American decision, without doing any independent verification on its own as to its validity – and knowing that Latif would have no ability to know the evidence against him or appeal the decision – is permissible,” said McKenzie, a Montreal litigator with Irving Mitchell Kalichman. “That is the impact of this decision.”

A spokesperson for the Quebec Human Rights Commission declined to comment on the case while a Bombardier spokesperson would only say they are pleased by the ruling.

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