Legal Update

1. Legal Update Athanassia Bitzakidis-CDPDJ Philippe Dufresne-CHRC Janice Gingell-SHRC

2. Athanassia Bitzakidis Conseillère juridique Legal Counsel Commission des droits de la personne et des droits de la jeunesse

3. Impact of Foreign Rules on Human Rights Law in CanadaRacial Profiling In “Services Ordinarily Offered To The Public” Quebec (Comm. des droits de la personne et des droits de la jeunesse) c. Bombardier Inc. (No 2) (2010), CHRR Doc. 10-3543, 2010 QCTDP 16

4. Canadian pilot of Pakistani origin discriminated against through Bombardier’s application of US security requirements. • Bombardier Inc. ordered by Quebec Human Rights Tribunal to pay $ 319 000 in damages, November 29, 2010.

5. Summary of facts • As part of its activities, Bombardier offers pilot training. • It offers “ type rating training ” (initial course) and “ recurrent training ” (refresher course) on various aircrafts, to pilots holding a Canadian licence from Transport Canada or a US licence from FAA. • Mr. Latif is a Canadian citizen of Pakistani origin and a Muslim. • He is an aircraft pilot with over 25 years experience. He obtained his US licence in 1991 from the FAA. His licence is valid for life.

6. Since the attacks of September 11, 2001, training applications for US licences require a security check from the US authorities. • Mr. Latif was entitled to take the training under either his Canadian or US licence. • It was under his US licence that Mr. Latif first applied to Bombardier in Montreal (the only place in Canada offering that course) to undergo his training, because he had not yet passed the flight skills exams required to obtain his licence from Transport Canada. • Accordingly, he had to undergo a security check by the US authorities.

7. In March 2004, he was offered a contract as a pilot of a Challenger 604 Aircraft. He had already taken his “type rating training ” for that aircraft under his US licence in 1996. In order to get the contract, he only needed to take a recurrent training. • Mr. Latif was denied training by the US authorities. No reason was given. He was labeled as a “ threat to national security ”, without any explanation. • In the meantime, Mr. Latif had been issued his licence by Transport Canada. Therefore, he asked Bombardier to undergo his training under his Canadian licence.

8. Without verifying with Canadian authorities, and solely based on the US decision, Bombardier refused Mr. Latif’s application and access to training under his Canadian licence. • Although Bombardier confirmed that training under a Canadian licence required no security clearance by US authorities, it nevertheless imposed that requirement on Mr. Latif as a prior condition of any training, regardless of the licence held.

9. Discrimination • The US authorities have no legal authority over training on a Canadian licence. • Bombardier’s refusal to admit Mr. Latif for training in its training program was not based on any legal requirement. • Bombardier’s refusal stemmed from the security measures taken after the 2001 attacks in order to counter and prevent terrorism on US territory. • By adopting the US decision, Bombardier subscribed to the objectives of the US rules. • It was adduced in evidence that those rules directly targeted or mainly affected Arabs and Muslims, or more broadly, people like Mr. Latif who were born in Muslim countries such as Pakistan.

10. Mr. Gignac, responsible for Bombardier’s decision, did not seek advice from Canadian authorities. He solely relied on the US and, in accordance, considered Mr. Latif a potential terrorist. • Gignac labelled Latif a terrorist, even though Mr. Latif was a pilot with many years of experience, well known by Bombardier, who just received training in the US in December 2003. • Most importantly, Bombardier refused Mr. Latif training solely based on the US decision, even though it lacked even minimal information regarding the process and justifications of same. • Application of sections 4, 10 and 12 of the Quebec Charter.

11. Racial profiling • It is not a case of direct discrimination. The refusal by Bombardier to train Mr. Latif under his Canadian licence did not depend directly on his Pakistani origin, but on the US decision. • However, the US decision was taken when aviation security measures became more strict with the passage, at the end of 2003, of the Vision 100-Century of Aviation Reauthorization Act. This Act implemented heightened security measures, aimed at preventing terrorist attacks. • A new US department was also created at the end of 2003 : the DHS. Its primary mission was to prevent terrorist attacks. It became (with TSA) responsible for the security clearance for pilot’s training under a US licence.

12. It was following the adoption of the new legislation and the establishment of the DHS that Mr. Latif, who had been given the required security clearances until then, was labeled a “ threat to national security ” in early 2004. • The Commission’s expert testified that the new law and security measures, and the TSA/DHS, were part of other programs and measures put in place by the US government to prevent terrorist attacks by targeting, in discriminatory manner, individuals of Arab and Muslim origin. • It was seen as a form a racial profiling as the programs considered Muslims in general as a high risk for national security, based on stereotypes.

13. Bombardier’s decision created, in Mr. Latif’s regard, a distinction based on his ethnic and national origin, considering that : • No evidence had been adduced that Mr. Latif would represent a risk for national security. • Bombardier did not check with Canadian authorities and asked the US authorities no questions about their decision to consider Mr. Latif a “ threat to national security ”. • Bombardier’s decision was based solely on the US decision, which followed the promulgation of US legislation and the establishment of the DHS, which involved racial profiling against Arab and Muslims in the security measures applicable in the fight against terrorism.

14. Conclusions of the Quebec Human Rights Tribunal • Moral damages: $ 25 000 • Punitive damages: $ 50 000 • Material damages (loss of income): $ 243 159 • Ordered Bombardier to cease applying or considering the standards and decisions of the US authorities in national security matters when dealing with applications for training under Canadian licences. (Bombardier has appealed the decision)

15. Impact of Decisions • First time that the concept of racial profiling was used in an employment context. • Landmark in respect of punitive damages awarded in a human rights case. • Canadian companies that are subject to US security standards must take great care of the impact of such standards on Canadians in order to ensure compliance with Canadian laws.

16. Philippe DufresneGeneral Counsel, Litigation ServicesCanadian Human Rights Commission

17. Right of Complainants to Receive Compensation for Legal Expenses at Human Rights Tribunals Canadian Human Rights Commission and Donna Mowat v. Attorney General of Canada SCC File No.: 33507 • At the tribunal, Ms. Mowat’s complaint was substantiated in part and she was awarded compensation for legal expenses incurred as a result of a discriminatory practice pursuant to s. 53(2)(c) of the CHRA. • Federal Court of Appeal overturned the decision of the tribunal, acknowledging that while legislation in some jurisdictions allowed legal costs to be received either expressly or through implication, the reference in the CHRA to expenses did not include legal costs. • Appealed by the CHRC to Supreme Court of Canada.

18. Issues raised by the Commission before the SCC: • Whether the interpretation by the Tribunal of its own enabling legislation is entitled to deference; • Whether the interpretation of the term “any expenses incurred” as excluding legal expenses is consistent with Parliament’s intent; • Whether the Federal Court of Appeal applied a narrow and legalistic interpretation of the CHRA which frustrates the purpose of the Act, and could jeopardize access to justice.

19. Government Funding Program – Comparator Group Issues First Nations Child and Family Caring Society of Canada (FNCFCSC), Assembly of First Nations (AFN) and CHRC v. Attorney General of Canada FC File Nos: T-578-11, T-630-11, T-638-11 • FNCFCSC and AFN have filed a human rights complaint against Indian and Northern Affairs Canada (INAC) alleging that it discriminates against First Nations children on reserves by providing inadequate funding for child and family services for children on reserve as compared to the level of funding for children living off-reserve.

20. First Nations Child and Family Caring Society of Canada (FNCFCSC), Assembly of First Nations (AFN) and CHRC v. Attorney General of CanadaFC File Nos: T-578-11, T-630-11, T-638-11 • The CHRT granted the AGC’s motion to dismiss the complaint, finding that the CHRA does not allow a comparison to be made between two different service providers with two different service recipients. The CHRT’s view is that since there are two service providers in this case (Federal and Provincial) then a comparison cannot be made and the complaint must be dismissed. • The CHRC and both complainants have each filed their application for judicial review of the CHRT decision.

21. Family Status Attorney General of Canada v. Fiona Ann JOHNSTONE and CHRC - FC File No.: T-1418-10 Canadian National Railway v. Denise SEELEY and CHRC - FC File No.: T-1775-10 • Border Service employee (Johnstone) sought accommodation for childcare – no individualized accommodation process provided. • Freight train conductor (Seeley) directed to transfer to Vancouver, requested accommodation due to childcare responsibilities and was fired.

22. The CHRT decisions under review found that each Respondent had discriminated against female employees on the basis of family status contrary to sections 7 and 10, by failing to accommodate their parental obligations.

23. The Tribunal upheld all the elements of the complaints and adopted the established jurisprudence which found that the ground of family status does not give rise to a stricter legal test of discrimination than in the case of other prohibited grounds. • The CHRC has argued that the CHRT's decisions contain no reviewable error of fact or law and its findings are reasonable and based on the evidentiary record.

24. Fasken Martineau DuMoulin LLP v. B.C. (Human Rights Tribunal) and McCormick 2011 BCSC 713 • Partner in law firm alleged discrimination on the basis of age. • Law firm disputed whether equity partner can be “employee”. • Tribunal and then British Columbia Supreme Court held that partner was in an employment relationship. • Court stated that applying a strict legalistic analysis to assess employment relationships is inconsistent with human rights principles. • Human rights protections should only be denied when it is clear from the wording of the Code that the relationship is excluded.

25. Lockerbie & Hole Industrial Inc. v. Alberta (Human Rights and Citizenship Commission, Director, 2011 ABCA 3 (CanLII) • Long term employee of a subcontractor was denied access to a Syncrude job site pursuant to a Syncrude drug testing policy • Panel found the AHR Act was not contravened, but under a “utilization of services” test held that Syncrude did have an employment relationship with the complainant. • On appeal by Syncrude, the Alberta Court of Appeal held that the employee’s relationship with Syncrude was “too remote to justify a finding of employment, even under the expanded meaning given to the term in human rights legislation”. • Court set out various tests and factors to be considered when determining whether an employment relationship exists.

26. Janice Gingell Senior Staff Solicitor Saskatchewan Human Rights Commission

27. SK HRC v William Whatcott, 2010 SKCA 26 • 2001 – William Whatcott distributes flyers expressing extreme religious based anti-gay and lesbian views. Tribunal and 1st appeal court find flyers contravene SK Code prohibition against hate publications.

28. 2010 – SKCA says that the words used did not violate the Code – the context of debate about sexual morality must be considered. • 2011 – SCC will hear appeal – the constitutionality of the prohibition and the test to determine “hatred and contempt” are the issues.

29. Marriage Commissioners Appointed Under the Marriage Act (Re), 2011 SKCA 3 • M.J. was successful in his human rights complaint against a government appointed marriage commissioner who refused to marry him and his same sex partner.

30. In response, the SK government asked the SK Court of Appeal to rule on the constitutionality of amendments permitting marriage commissioners to decline to perform marriages which conflicted with their personal religious beliefs.

31. A unanimous Court held that the amendments unduly interfered with the equality rights of gay and lesbian individuals and were not justified under section 1.

32. Hendershott v. Ontario (Community and Social Services, 2011 OHRT 482 (CanLII) • Elaborates on Tranchmontagne-not necessary to use the precise language of prejudice or stereotyping in determining whether the Code has been breach. • It is sufficient for the applicant to prove that they have been adversely affected on the basis of a prohibited ground, by some action on the part of the respondent.

33. Discrimination Analysis in Cases Involving Government Programs Ontario (Director, Disability Support Program v. Tranchemontagne) ONCA 2010 • The Respondents were disabled because of alcoholism. The provincial benefits program excluded this disability from benefits. • The Social Benefits Tribunal found this exclusion was discriminatory.

34. On appeal, the Court examined how proving discrimination differs in Charter and Code claims. It held that in both circumstances the claimant must prove disadvantage. • In most claims however it will be easy to draw an inference of stereotyping or perpetuating disadvantage or prejudice. Only when it is not apparent that a distinction is based on a protected personal characteristic is it necessary to present evidence demonstrating that the distinction creates a disadvantage by stereotyping or perpetuating prejudice

35. Withler v Canada (Attorney General); 2011 SCC 12   -   Discrimination Analysis – Section 15 - Charter • SCC finds that an age based reduction in supplementary death benefits paid to surviving spouses of older retired federal civil servants and older members of the armed forces is not discriminatory. • Proving discrimination under the Charter no longer requires the identification of a comparator group.   • The Court emphasized the need to analyze discrimination by focusing on substantive equality instead of taking an approach which treats “likes alike”.

36. In most cases under the Code, prejudice and stereotyping will be inferred where the claimant is able to link their identity to the prohibited ground and prove that the ground was a factor in the disadvantage they experienced.  • The complainant proves the distinction (or treatment), the connection to the prohibited ground and the disadvantage that flows from it.  The Respondent proves the statutory defence or exemption.