Discrimination, Deference and Pluralism: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39

In my view, the Supreme Court of Canada’s commitment to deference is in tension with its institutional role as the country’s highest court. According deference to administrative decision-makers means favoring legal pluralism, permitting those decision-makers to put their own spin on rules of substantive and procedural law. But a court of final resort may feel an institutional obligation to set down clear substantive and procedural rules for courts and decision-makers across the country. Hence the tension between the Court’s institutional role and its repeated invocations of deference.

Understanding the tension and the effect it has on how the Court decides administrative law cases is critical to understanding Canadian administrative law. Indeed, it is difficult for the Court provide clear leadership on the general principles of administrative law because it is compromised by its institutional role as ultimate expositor of substantive and procedural law. Few of the judicial review cases the Court agrees to hear provide meaningful guidance to lower courts on how to apply these general principles. Sometimes the Court ignores the role of the administrative decision-maker entirely; sometimes it dresses up its authoritative exposition of the law in the guise of reasonableness review; sometimes it manipulates the standard of review analysis to justify a sweeping declaration of general principle; and sometimes in its drive for coherence it undermines legal pluralism. The strategies are not mutually exclusive, of course, and they are often deployed in combination.

This tension was on display in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, decided yesterday, and was resolved decisively in favour of the exposition of national rules of substantive and procedural law, at the expense of legal pluralism. The facts are straightforward. Latif is a pilot who was denied training by Bombardier in 2004. The denial was based on a national security decision of the American authorities, a decision Bombardier applied because it did not want to imperil its standing with the Federal Aviation Authority. Latif is Pakistani. The Quebec Human Rights Tribunal found that Bombardier had discriminated against him. Although there was no direct evidence of discrimination by Bombardier, the Tribunal based its decision on an expert report and circumstantial evidence about racial profiling in the United States after 9/11.

At first blush, this looks like a straightforward administrative law case that required the Tribunal to weigh evidence and come to a conclusion. Moreover, it conducted the weighing exercise in a very particular context, one in which an individual like Latif is powerless in the face of an unreviewable decision (see para 16). In this sort of context, one can understand why the Tribunal was not especially impressed by Bombardier’s automatic application of the American decision and why the Tribunal thought Bombardier should have been more proactive (see para 101). As a large institution, it was certainly in a better position than Latif to follow up with the U.S. authorities.

Why, then, did the Court grant leave? There are two large clues in the joint reasons of Wagner and Côté JJ. for a unanimous Court. First, this was the first opportunity for the Court to consider “a form of discrimination allegedly arising out of the decision of a foreign authority” (at para 2). Second, the Court had “never clearly enunciated the degree of proof associated with the plaintiff’s burden” of making out a prima facie case of discrimination (at para 55). Unsurprisingly, the bulk of Wagner and Côté JJ.’s reasons are devoted to giving administrative decision-makers and lower courts guidance on these inter-related issues. The guidance is that the civil standard of the burden of proof always applies (at para 65, though note that strictly speaking this conclusion only applies to Quebec, which has a specific legislative provision about the burden of proof).

What about administrative pluralism? Wagner and Côté JJ. accept that tribunals have the authority to adapt their rules of procedure and admissibility of evidence to their particular regulatory context (at paras 67-68). But not the burden of proof, “in order to maintain the uniformity, integrity and predictability of the law” (at para 69). It is difficult see a justification here for according the burden of proof a special status different to rules of procedure and evidence. Wagner and Côté JJ. say only “that the application of a given legal test must be based on the same elements and the same degree of proof in every case” (at para 69), but this is difficult to square with the Court’s openness to allowing administrative decision-makers to mould rules of substantive law to better achieve their regulatory purposes.

There then follows an intrusive analysis of the Tribunal’s appreciation of the facts, which looks suspiciously like de novo review even though it is adorned by the language of reasonableness (at para 81). At one point, Wagner and Côté JJ. comment that the “practical” effect of the Tribunal’s decision was to reverse the burden of proof they had previously established (at para 88), but in their analysis they carefully pick apart the Tribunal’s reasons, using different expressions: insufficient evidence (at para 84), evidence not “tangibly related” (para 89), evidence “not sufficiently related” (at para 89), or simply “no evidence” (at para 99). t As usual, these are all faithful translations of the original French).

But whether the evidence is sufficient or not is surely a matter for an administrative decision-maker. Further, the evidence was insufficient on only one of the three grounds Latif needed to prove to make out a prima facie case of discrimination — does this mean that a reviewing court is entitled to pick apart a human rights tribunal’s decision and examine the sufficiency of the evidence on each ground independently? Inasmuch as there is any meaningful guidance to lower courts here, the unfortunate effect will be to license intrusive judicial review of tribunals’ appreciation of the facts, no doubt to the further expense of legal pluralism. Hopefully future reviewing courts will focus on the language highlighting the effective reversal of the burden of proof, the sort of error that superior courts can more plausibly claim they have authority to correct on judicial review.

In my view, Bombardier should be treated primarily as a case about discrimination law. If the Court’s goal was — as I suggested — to set out general principles relating to the burden of proof in discrimination cases, Wagner and Côté JJ.’s reasons surely achieved it. Hopefully this decision’s general effects on administrative law will be small, aside from its utility as another cautionary tale about the tension between the Court’s institutional role and its commitment to deference.

This content has been updated on July 24, 2015 at 10:49.