Supreme Court case filed against Air Canada over alleged discrimination

A Canadian man is asking the country’s top court to hear a case involving alleged discrimination by Air Canada.

The Nova Scotia resident, who has asked not to be named, was born in Lebanon but has been a longtime Canadian citizen. He works as a taxi driver.

His lawyer, Sujit Choudhry of law firm Haki Chambers Global, told us that Canadians should be aware of this case as it highlights serious issues when it comes to passengers’ ability to sue for damages when experiencing discrimination based on sex, gender identity, religion, and race on international flights.

“This is a big-deal case,” he told us in December. “If Air Canada is right, it would mean that any passenger flying on an international flight leaving Canada and was the victim of discrimination of any kind… they could not get damages for that discrimination. So, it’s not just about him.”

The incident with Air Canada

In December 2016, the taxi driver booked an Air Canada flight from Halifax to London, UK, to connect to a flight to Lebanon. He wanted to visit his father, who was extremely ill at the time.

“On the plane, while speaking on the phone in Arabic, the appellant placed his jacket on the seat next to him. A flight attendant told him to remove his jacket,” reads the filing from the Federal Court of Appeal (FCA).

“Annoyed at the flight attendant’s tone, he expressed his displeasure — he concedes he might have done this a little harshly — and he asked to speak to a manager.”

Shortly after, Air Canada removed him from the aircraft, did not allow him to reboard, and placed him on a travel ban for nearly a year, reads court documents.

According to a report prepared by the carrier for the FCA, the passenger was “verbally abusive toward a flight attendant and gate staff.”

However, the appellant argues that a flight attendant treated him rudely and that he tried to lodge a complaint with a supervisor.

He claims that he was targeted by Air Canada staff because he had been speaking Arabic on the phone. The appellant alleges that he was ultimately the victim of discrimination based on race, ethnicity, and perceived religion.

The document filed with the Supreme Court explains that the appellant’s “race, ethnic origin and/or colour remain identifiable through his name, appearance, accent, and use of
Arabic when communicating with family members. These factors also make [him] likely to be misidentified as a Muslim.”

Complaint to the Canadian Human Rights Commission

The taxi driver filed a complaint with the Canadian Human Rights Commission (CHRC) a year later in December 2017.

Human rights complaints regarding Air Canada must go through the federally run CHRC since it’s a federally regulated airline.

The CHRC is a screening body that investigates and tries to settle complaints regarding discrimination based on the Canadian Human Rights Act (CHRA).

If the commission decides your complaint is legitimate, it will then send your case to the Canadian Human Rights Tribunal (CHRT), where lawyers are present and witnesses can testify about the case.

The CHRA is a federal law that protects the rights of individuals in Canada — regardless of their race, gender, religion, sexual orientation, or disability — from discrimination by businesses regulated by the federal government, including airlines.

In his complaint, the man sought damages in the form of monetary compensation for “pain and suffering and reckless discrimination” he allegedly experienced on the Air Canada flight.

In March 2020, the CHRC dismissed the man’s case, citing the Montreal Convention, an international treaty Canada has signed. The Montreal Convention establishes airline liability for flight delays and cancellations, lost and damaged baggage, and even death or injury to passengers.

The commission agreed with Air Canada’s argument that a clause in the treaty would bar the CHRT from awarding damages.

“Why would it be that a treaty that’s really about liability of air carriers for travel have anything to do with whether airlines are liable in damages for discrimination?” Choudhry questioned.

In August 2020, the man applied for a judicial review with the Federal Court.

“He sought an order setting aside the CHRC’s decision and a series of declarations on questions of law to correct the errors made by the CHRC,” reads the court document submitted to the Supreme Court.

The Federal Court didn’t grant any of his asks, so the man appealed his decision to the FCA.

Last July, the FCA dismissed his case, except in one respect. It ordered the commission to examine whether it is “plain and obvious” that the appellant’s claim, which alleges the incorporation of the Montreal Convention into Canadian law violates section 15 of the Canadian Charter of Rights and Freedoms, has no chance of success.

Main arguments

Choudhry says the case submitted to the Supreme Court argues that the commission was wrong to decide that the treaty bars the tribunal’s power to award damages to his client, if he was, in fact, the victim of discrimination.

“My client hasn’t had his day in court before the tribunal yet,” said the lawyer. “He wants to testify, he wants to bring evidence, he wants Air Canada to bring evidence.”

The second argument is that Canada has also signed the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), which requires the country to prohibit discrimination on private transportation and to provide damages as a remedy, if appropriate.

Lastly, the man’s case argues that the Montreal Convention should not be able to trump the CHRA, which is a quasi-constitutional statute. That means it can only be beaten if other legislation very clearly states that it can prevail over the CHRA. The case argues that the legislation that incorporates the Montreal Convention into Canadian law doesn’t have such clear statements.

Each year the Supreme Court considers an average of between 500 to 600 applications for leave to appeal and only hears 65 to 80 of them, according to Canada’s Department of Justice. It only hears cases that it considers to be of public importance and to have national significance.

Air passenger rights expert and advocate Gábor Lukács says that because of the commission’s decision, Canadians are in a “legal limbo” when it comes to their ability to sue for damages when experiencing discrimination on international flights.

“That’s something that urgently needs to be clarified and fixed by the Supreme Court of Canada,” he said, responding to the case. “It creates a significant risk. It puts people of racial minorities at risk when they travel by air.”

Air Canada declined to comment.