Bombardier operates training facilities for licensed pilots in Montreal and Dallas. Appellant, Canadian citizen born in Pakistan and holding Canadian and U.S. licences, registered for training in Dallas. Request for security clearance from U.S. authorities was denied and appellant unable to receive training in Dallas.
Bombardier also refused to train appellant in Montreal under Canadian licence. Appellant filed complaint with Commission des droits de la personne et des droits de la jeunesse (Commission), claiming that Bombardier’s refusal constituted discrimination. Commission instituted proceedings in Human Rights Tribunal alleging Bombardier impaired appellant’s right to avail himself of services ordinarily offered to public and his right to safeguard of his dignity and reputation without discrimination based on ethnic or national origin, contrary to Quebec Charter of Human Rights and Freedoms. Tribunal ordered Bombardier to pay damages and to cease applying or considering standards and decisions of U.S. authorities in national security matters when dealing with applications for training pilots under Canadian pilot’s licences.
Court of Appeal set aside tribunal’s decision, finding that tribunal could not find that Bombardier discriminated without proof that U.S. authorities’ decision was itself based on ground prohibited under charter. Appellant’s appeal dismissed. Complaint under charter involves two-step process. First, plaintiff must prove, on balance of probabilities: (1) distinction, exclusion or preference; (2) based on one of grounds listed; and (3) which has effect of nullifying or impairing right to full and equal recognition and exercise of human right or freedom. If these elements are established, there is prima facie discrimination. Quebec charter does not protect right to equality per se; right to non-discrimination must necessarily be attached to another human right or freedom recognized by law. Second, defendant can justify decision or conduct on basis of exemptions provided for in applicable human rights legislation or those developed by courts. Tribunal’s decision was not supported by evidence; it was unreasonable and had to be set aside. Commission did not demonstrate that appellant’s ethnic or national origin played any role in U.S. authorities’ unfavourable reply to his security screening request. Rather, Bombardier’s decision to deny appellant’s request for training was based solely on U.S. authorities’ refusal to issue him a security clearance. It was not open to Tribunal to conclude that Bombardier’s decision constituted prima facie discrimination under the charter.
Québec (Commission des droits de la personne et des droits de la jeunesse) c. Bombardier Inc. (Jul. 23, 2015, S.C.C., McLachlin C.J.C., Abella J., Rothstein J., Cromwell J., Karakatsanis J., Wagner J., and Côté J., File No. 35625) Decision at 237 A.C.W.S. (3d) 181 was affirmed. 255 A.C.W.S. (3d) 79.