LEEL 570 Lecture Notes - Lecture 8: Comparator, Jaguar, Elk Valley (British Columbia)
27 Jun 2018
School
Department
Course
Professor
Employment Law
Jan 29 - 31: Recruitment and the Law: the Contractual Relationship in a Public Law Framework
Reading Bombardier alongside Meiorin and Shrenk
CDPDJ v Bombardier (2015) SCC (Latif)
Facts: Mr. Latif (Pakistani-Canadian) trained as pilot in US but was denied by the US Dep of
Justice for security reasons. He also had a Canadian license to tried to get employment at
Bombardier in Canada but was denied based on the US DOJ reason (or lack thereof).
Issue: Alleged discrimination based on national or ethnic origin
Not exactly recruitment: offer from another employment but Bombardier did the training which
required screening
How is the alleged discrimination characterized? See para 2 – racial profiling
oBy its nature, it is not specific to the decision-making in this particular case. Rather, it is
about the broader pattern
Holding (para 4): "it has not been shown on a balance of probabilities that there is a connection
between a prohibited ground of discrimination and the company's decision to deny the individual's
training request"
Discrimination does not require intent
oMeiron: move to adverse impact because of reasons: narrow view that doesn’t focus on
impact and difficult to determine intern
Step 1: 3 elements of prima facie test under s.10
1. Distinction
2. Based on one of the prohibited grounds listed in the first paragraph of s.10
oCentral element – must have proof of "connection"
oIt is enough if the decision or action is based in part on the ground
oNeed not establish a "causal link" in the terms of civil liability
3. Which has the effcvt of nullifying or impairing the right to full and equal recognition and exercise
of a human right or freedom
Para 35
Much language based on Qc charter
QCA decision
Exclusion of Mr. Latif occurred
But no causal connection established
oI.e. no proof, even circumstantial or on the basis of presumptions, that the decision was
based on a prohibited ground...
oI.e., the prima facie test for discrimination was not met
Standard of Review
QCA and SCC regarding the QHRT's decision
oIs this a judicial review, or an appeal?
SCC in Dunsmuir v New Brunswick (2008) for judicial review
SCC in Mouvement laïque québécois v. Saguenay (2015) for approach to the QHRT
Dunsmuir on judicial review
oIncidentally, a good case to help you understand the current enjeux surrounding office
holders considered to hold employment "at pleasure"
find more resources at oneclass.com
find more resources at oneclass.com
oKey starting point: "as a matter of constitutional law, judicial review is intimately
connected with the preservation of the rule of law" (para 27)
oFinal word is that courts must be deferential, or else it becomes an exercise of power
Admin bodies
oGranted admin powers by decision makers (I.e. elected officials) according to statutory
regimes. They engage in aspects of redistribution
oAn admin body, "by acting in the absence of legal authority, the decision maker
transgresses the principle of the rule of law" (para 29)
oSo what is the courts' role?
Legislative supremacy: 1. courts have the final say...
2. "legislative supremacy is affirmed by adopting the principle that the concept of
jurisdiction should be narrowly circumscribed and defined according to the intent of the
legislature in a contextual and purposeful way"
3. "legislative supremacy is affirmed and the court-centric conception of the rule of law is
reined in by acknowledging that th ecourts do not have a monopoly on deciding all questions of
law" (para 30)
Sources of the constiuttional guarantee?
oSs 96 and 101 of the Constitution Act, 1867
oCrevier (1981) SCC
* chart of principles as reconsidered in Dunsmuir
oWe still keep a correctness standard (I.e. Schrenk)
oParent unreasonableness standard gone
oReasonableness standard should be applied by courts in a contextual way
Indicia of when a decision is subject to a reasonableness standard
oExistence of a privative or preclusive clause – statutory direction indicating the need for
deference
oWhere a question is one of fact, discretion or policy
oA discrete and special admin regime in which the decision maker has special expertise
(labour relations for instance)
oThe nature of the question of law
If it is of "central importance to the legal system... and outside the... specialized
area of expertise" then it attracts a correctness standard (e.g. constitutional questions on
the division of powers)
True questions of jurisdiction or vires – narrowly understood - correctness
standard
No exhaustive review for each case; they should base their decisions on past decisions when
possible
1. Courts ascertain whether the jurisprudence has already determined in a satisfactory manner the
degree of deference to be accorded
2. Where the first inquiry proved unfruitful, courts proceed to an analysis of the factors making it
possible to identify the proper standard of review (para 62)
Excerpts from Saguenay (SCC)
oApplies specifically to QHRT (part of Cour du Quebec, which Charter says has appeal)
oSCC clarified that QHRT should be treated with judicial review
find more resources at oneclass.com
find more resources at oneclass.com
oWhere a court review a decision of a specialized admin tribunal, the standard of
review must be determined on the basis of admin law principles. This is true regardless of
whether the review is conducted in the context of an application for judicial review or of a
statutory appeal
oIt is true that the Tribunal is similar to a court both in the questions it must decide and in
the adversarial nature of the proceedings before it. However, these similarities do not change its
nature. It is a specialized admin tribunal
oFirst of all, the Tribunal is not a court to which the Courts of Justice Act applies. It is a
body created under the Qc Charter... some of its members are appointed from among the
judges of the Court of Quebec having experience, expertise and an interest in hr... the others are
assessors... the members are appointed for 5 year terms...
oThe tribunal's procedure also reflects its nature.. They provide inter alia that the
Tribunal is not strictly bound by the usual CPC rules
Prima Facie Discrimination Test: Bombardier vs Meiorin
In Bombardier, the SCC expands on this test that was little considered in Meiorin
This was where the bulk of the work was in Bombardier
Step 2: Section 20 is a justification
This is what is truly considered in Meiorin
Does Bombardier have to justify its actions, according to the SCC?
Key: Latif is decided at the level of the prima facie case, which is held NOT to have been met,
due to the level of proof required (balance of probabilities)
Section 20 si therefore not even at issue...
This contrasts significantly with Meiorin, and a systemic discrim case we will read on Thursday,
Gaz Métropolitain
"Discrimination can take a variety of forms"
Opening sentence of the decision
SCC reaffirms that discrim can result from unconscious prejudice and stereotypes "or from
standards that are neutral on their face but have adverse effects on certain persons" (para 1)
It also affirms that intent to discrim is not required (para 40) and the logical reasons why (para
41_
So why does the Latif case as presented by Cdpdj become so challenging?
oThe US didn’t give any reasons as to why Mr. Latif was denied on security grounds.
National security works as a barrier to providing proof here
oSCC claims evidence is insufficient and unreasonable given the standard is on the
balance of probabilities... even though deference was to be owed to the QHRT who had special
expertise and determined the evidence was sufficient
QHRT prima facie analysis
"the refusal to train Mr. Latif under his Canadian licence did not depend directly on his Pakistani
origin, but on the refusal of the US authorities to give him security clearance"
Consequently relied on expert testimony on racial profiling attesting that "several
US administratives agencies had engaged in racial profiling against people of Arab origin, Muslims or
people from Muslim countries" (para 22). QHRT: included the decision regarding Mr. Latif
What is he link back to Bombardier? (para 23, para 74)
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Jan 29 - 31: recruitment and the law: the contractual relationship in a public law framework. Issue: alleged discrimination based on national or ethnic origin. Facts: mr. latif (pakistani-canadian) trained as pilot in us but was denied by the us dep of. He also had a canadian license to tried to get employment at. Bombardier in canada but was denied based on the us doj reason (or lack thereof). Not exactly recruitment: offer from another employment but bombardier did the training which required screening. By its nature, it is not specific to the decision-making in this particular case. See para 2 racial profiling o about the broader pattern. Holding (para 4): "it has not been shown on a balance of probabilities that there is a connection between a prohibited ground of discrimination and the company"s decision to deny the individual"s training request" Meiron: move to adverse impact because of reasons: narrow view that doesn"t focus on.
