Canadian Human Rights Commission Says ITAR Compliance Violates Canadian Human Rights Code

In a November 15, 2006 interim decision by the Human Rights Tribunal of Ontario it was stated that the Ontario Human Rights Commission believes that ITAR compliance measures taken by General Motors in Canada in 2002 “constitute discrimination in employment on the basis of their citizenship or place of origin contrary to the Ontario Human Rights Code.”

In 2002, GM Defense in Canada sent home 172 workers from its plant in London , Ontario because their citizenship status created a “security risk” and ITAR technical data transfer compliance problem. Unfortunately, this is in stark contrast to Canada ’s Charter of Rights and Freedoms which prohibits discrimination against workers based on citizenship or country of origin.

Some of the employees were called back, most to lower-ranking jobs, but Marcos Henriquez filed a claim against GM over his dismissal which was confidentially settled this past summer. The implications are far-reaching, both to GM and other Canadian companies who work on US military projects. GM will face an Ontario Human Rights Tribunal over the lay-offs early in 2007.

The interim decision points out that perhaps GM Defense in Canada could have taken measures to “obtain security clearances” (perhaps that means obtain US State Department authorization) for the laid off employees instead of just sending them home. While we are not experts on Canadian human rights laws and tribunals, it appears that the latest interim decision is primarily a procedural decision that allows CAW-Canada Local 27 and General Dynamics Land Systems (which acquired General Motors Defense in Canada after the layoffs) to become involved in the proceeding.

On January 9 and 10, 2007, General Motors motion to have the case dismissed for constitutional reasons will be heard.

The ITAR rules that prohibit transfer of US origin technical data to third country nationals (and certain dual nationals) affect defense companies all over the world, but have been most public in Canada because of their conflict with local human rights laws.

There is an ongoing dialogue between Canadian officials and the US Department of State on how to handle the conflicts that seem to be arising more frequently. These issues hinder military contracts on both ends for the United States and Canada. European military contractors face similar dilemmas. Typically, the US Dept. of State is reluctant to offer any relief to anybody who struggles to comply with ITAR requirements. (In this case “anybody” includes US companies, foreign companies, and foreign governments).

The website of the Canadian human rights organization is www.hrto.ca