CMLA Intervention before SCC

September 29, 2014
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The CMLA has applied for leave to intervene before the Supreme Court of Canada in Commission des droits de la personne et des droits de la jeunesse et al v. Bombardier Inc., together with the National Council of Canadian Muslims.

The case concerns the exclusion of Javed Latif, a Canadian citizen of Pakistani origin and a Muslim, from certain training courses offered by the Bombardier Aerospace Training Centre in 2004.  Mr. Latif is an aircraft pilot with over 25 years of experience.  He applied for additional training under his U.S. pilot’s license because he was offered a job as pilot of a new aircraft.  Mr. Latif was refused permission to train at the Dallas campus of the Bombardier Aerospace Training Centre on grounds that he posed a threat to aviation or national security.  Mr. Latif then applied for training under his Canadian pilot’s license but was refused permission to train at the Montreal campus of the Bombardier Aerospace Training Centre.  Although the request under the Canadian license is not usually subject to the US security clearance process, Mr. Latif was denied access to training because the information about the threat came from a “credible source”.  In 2008, the US authorities cleared Mr. Latif of any security restrictions.

The Quebec Human Rights Tribunal ruled that a prima facie case of discrimination had been established.  It found that Bombardier’s decision was based exclusively on the decision of US authorities which in turn was based on aviation security measures enacted post-9/11, which applied only to non-US citizens and which disproportionately affected individuals from Muslim countries.  The Quebec Human Rights Tribunal noted in particular that Bombardier viewed Mr. Latif as a “potential terrorist” without seeking any additional information on Mr. Latif.

The Quebec Court of Appeal reversed the decision of the Quebec Human Rights Tribunal on ground that there was no evidence to support the contention that the refusal to allow training was based on Mr. Latif’s national origin.  The Quebec Court of Appeal ruled that Bombardier did not choose to apply a different test to determine Mr. Latif’s eligibility.  Furthermore, the Quebec Court of Appeal ruled that the US program that requires security clearance applies to all non-US citizens and that there was no evidence of racial profiling in the program.

On May 1, 2014, the Supreme Court of Canada granted the motion for leave to appeal of the Appellants.  The CMLA filed its materials in respect of its motion for leave to intervene on September 19, 2014.  A decision on whether leave will be granted is expected by the end of October.