Sophisticated businesses operating in Canada often confront a dilemma caused by defence policy objectives of the United States of America. American law affects activities in Canada by, for example, controlling who can access defence-related technology (even if the immediate application of that technology is not a military application), currency transfers, and even airplane pilot training. But these US requirements, which are often backstopped by the threat of multi-million dollar fines, may spark allegations of discrimination under Canadian human rights legislation. The Supreme Court of Canada (“SCC”) has now set out some basic principles that clarify the test to be applied in discrimination complaints, which should help businesses assess potential risk when trying to comply with both US and Canadian requirements.
The problem: The US rule precludes skills training in Canada
In Bombardier Inc. (Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39), an airplane pilot, who was a Canadian citizen born in Pakistan, alleged that Bombardier violated human rights legislation when it refused to provide him training for a particular airplane. Bombardier refused him training only because the US Department of Justice (“US DOJ”) did not issue the pilot the requisite security clearance for the training. The US DOJ provided no reasons for its decision to refuse the security clearance. The case involved a five year period during which the US DOJ refused to grant him a security clearance. Interestingly, the pilot had been granted a security clearance for other purposes both before this decision.
The alleged discrimination: The racial profiling syllogism
The Quebec Human Rights Tribunal found that Bombardier’s decision not to train was a discriminatory practice because it was based on a clearance decision by the US DOJ, which, the Tribunal found, engaged in racial profiling or “targeted Arab or Muslim people or, more broadly, people from Muslim countries, including Pakistan”. According to the Tribunal, because the US DOJ engaged in racial profiling, its decision not to issue the security clearance must have been a discrimination based on place of origin. Consequently, Bombardier’s decision not to train the pilot was also discriminatory because it was based on the tainted US DOJ’s decision.
The SCC requires evidence of discrimination
The SCC ruled the opposite. Bombardier had done nothing wrong because there was not sufficient evidence to show that place of origin played any role in the US DOJ’s decision to refuse to grant the security clearance. For the SCC, there was no direct evidence nor was there sufficient evidence that could “support an inference of a connection between his national origin and his exclusion and the US government’s decision not to grant him security clearance.”
In reaching this conclusion, the SCC addressed three evidentiary areas where the plaintiff claimed there was sufficient evidence of discrimination. For the SCC, these areas did not establish “on the balance of probabilities that there was a connection between” the prohibited ground of discrimination (the pilot’s protected status) and the adverse decision (the decision not to grant him a security clearance).
An allegation of targeting is not proof of discrimination
Importantly, the SCC concluded that an expert report that found “there was a social climate in which racial profiling was generalized for national security purposes as a result of the terrorists attacks from September 11th and that racial profiling was practised in certain US government programs” did not establish a connection between the pilot’s ethnicity and the specific decision to not grant him the training license. To make that kind of presumption would amount to reversing the burden of proof in discrimination matters. As the SCC stated: “Evidence of discrimination, even if circumstantial, must nonetheless be tangibly related to the impugned decision or conduct.”
Changing a decision is not proof of discrimination
The fact that the pilot had previously received a security clearance from the US DOJ was not evidence of discrimination because:
- The US DOJ had indicated that it had new information; and
- When it granted him the earlier security clearance, his country of origin was known to the DOJ and, therefore, issuing of that earlier security clearance sheds no light on the reasons for its subsequent refusal.
A small sample size does not prove discrimination
The fact that four out of the five candidates who were unable to train at Bombardier’s center because of the US DOJ’s refusal to issue security clearances were from Arab or Muslim countries was “insufficient” to infer improper action. The SCC noted that at least 30 pilots who were native to such countries received clearances from the US authorities.
Broad application of the basic principle
The key evidentiary principle that the SCC stated should apply to all discrimination claims “in order to maintain the uniformity, integrity and predictability of the law” involves a two-step analysis. In the first step, the burden is always on the complainant alleging discrimination to prove on the balance of probabilities:
- differential treatment;
- which is based on a prohibited ground of discrimination; and
- which affects the full and equal exercise of a right to or freedom guaranteed by the legislation.
In the second step, if the complainant has established discrimination in the first step, the burden then shifts to the defendants to justify or excuse the discrimination based on the exceptions or defences in the legislation or as developed by the courts.
The SCC made it clear that the burden of proof at the first stage of a discrimination case is always on the plaintiff and that an allegation of “profiling” is not the same as evidence of discrimination. But the decision did not canvass the full gamut of issues that may be engaged when US laws impact employment opportunities in Canada, such as the relationship between provincial human rights legislation and various federal powers, including national defence and treaty-making powers.
The case facts did not involve a situation where the foreign government imposed a blanket restriction explicitly tied to persons because of their place of origin, e.g. persons born in Country “X” cannot be trained on or access “Y” type of technology. In that regard, the SCC did caution that a business cannot “blindly comply with a discriminatory decision of a foreign authority without exposing itself to liability under human rights legislation,’ thereby reminding business of the duty to accommodate and the reasonable and bona fide occupational requirement defence.
We continue to advise businesses on a multi-disciplinary basis, including international trade, discrimination, privacy and data protection, where there is not an easy harmony at the intersection of Canadian and US or other foreign laws. There are a variety of techniques available to businesses to mitigate the risk of adverse findings under Canadian law while avoiding significant fines and other sanctions that businesses may face if they fail to comply with US requirements.
By Jason Hanson, Rhonda Shirreff and Allan Wells, Osler, Hoskin & Harcourt LLP
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