Looking back at Latif and the challenge of proving discrimination

By Yves Faguy July 13, 201813 July 2018

Looking back at Latif and the challenge of proving discrimination

 

This month marks the third anniversary of the Supreme Court of Canada ruling in which it rejected an appeal from Javed Latif, a Canadian pilot of Pakistani origin who claimed the transportation company Bombardier Inc. had discriminated against him on account of his ethnic background. Bombardier refused to provide him training at its facility in Quebec because U.S. authorities had declared him a threat to aviation security (Latif was also licensed in the U.S.). The Quebec Human Rights Tribunal agreed with Latif’s position, Quebec’s Court of Appeal set aside its decision because it could not find that Bombardier had discriminated against Latif without proof that the U.S. authorities’ decision was itself based on a ground that the Charter prohibits. In its ruling Supreme Court outlined the test for establishing discrimination in human rights cases.

In their recent article published in the current edition of the Canadian Bar Review, Colleen Sheppard and Mary Louise Chabot draw parallels with a very different decision, the SCC’s Taypotat ruling, that decided that minimum education requirements to run for Chief or Band Councillor in the Kahkewistahaw First Nation are not discriminatory under section 15 of the Charter. The authors argue that our courts need to be more sensitive to the evidentiary challenges facing plaintiffs in establishing discrimination:

Bombardier and Taypotat are complex cases that raise fundamental issues about individual and group-based exclusion in contexts of widespread societal inequality and concern—racial profiling post 9/11 and educational inequality of Indigenous peoples in the wake of the Residential Schools era. These are precisely the kind of cases where a large and liberal interpretation of human rights protections should prompt judicial ingenuity and creativity to enhance equitable inclusion. While factual inferences and social science evidence may not always suffice to prove specific allegations of prima facie discrimination, greater reliance on these evidentiary tools is crucial for ensuring human rights decisions are attuned to the complex realities of conscious and unconscious bias in a world of disparate power and privilege.

Ranjan K Agarwal, Faiz M Lalani and Misha Boutilier note that in Latif, there was a failure on Latif’s part to match Bombardier’s expert statistical evidence:

Social science evidence can be useful for applicants, but Latif suggests that applicants should ensure that they clearly link social science expert evidence to specific material issues in the case, outline the chain of inferences they wish the tribunal to draw from it, and connect it to the circumstantial evidence and adjudicative facts. Applicants considering adducing social framework evidence should be prepared to explain why expert evidence on the precise matter at issue is unavailable. Applicants should also adduce statistical evidence, especially where respondents are likely to rely on such evidence, and to link qualitative evidence of discrimination to statistical analysis.

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