Quebec Court of Appeal: Evidence Required to Prove Discrimination…

The Quebec Court of Appeal (decision in French) recently overturned a decision of the Quebec Human Rights Tribunal (decision in English) made in 2010 which had essentially held that any decision not to train a pilot made by the U.S. Transportation Safety Administration (TSA) and Department of Homeland Security (DHS) was prima facie anti-muslim and/or anti-Arab and discriminatory. Accordingly, Bombardier could not refuse to train a pilot for a license on the basis of a U.S. DHS determination that the pilot constituted a security risk. The CBC described the original case and its ramifications here. The follow up on the Court of Appeal decision by Sun New is here.

I was very fortunate to be involved in the original case and the beginning of the appeal at my former firm. When the Human Rights Tribunal rendered its decision in favour of the plaintiff, on the basis of very tenuous “evidence”, I was surprised and disappointed. Thankfully, the Quebec Court of Appeal has set the matter straight.

The Court of Appeal took issue with the fact that the Tribunal based its decision almost entirely on an expert report (expertise that the Court of Appeal found to contain errors) that concluded that the findings of U.S. security apparatus were discriminatory because an anti-Muslim sentiment existed in the United States and that therefore the decision to deny the plaintiff must also have been discriminatory. The Court of Appeal summarized its views as follows (my rough translation):

[127] … I find it difficult to see how we can allow ourselves to make a judgement that an anti-arab or islamophobic sentiment in the United States […] would be sufficient to create causal link between the refusal of American authorities to issue a security certificate. In the relevant period (2003-2008), Bombardier trained a number of pilots of arab, muslim or Middle-Eastern decent who underwent the same security verifications and all received positive responses.

As explained in the CBC article linked above, the original decision would have had massive ramifications for Bombardier and other Canadian companies required to work with U.S. authorities. Whatever your political leanings, I do believe that firm evidence should be required before assuming that the decisions of an arm of an entire nation are prima facie discriminatory and I thank the Quebec Court of Appeal for recognizing that.

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