In British Columbia Human Rights Tribunal v. Schrenk 2017
SCC62, a majority of the Supreme Court of Canada found that the British
Columbia Human Rights Code’s (“Code”) prohibition against
discrimination “regarding employment” prohibits discrimination against
employees even where the discriminatory conduct was carried out by a co-worker
and not the employer. The court held that the Code applies whenever the
discrimination has a “sufficient nexus” with employment.
In this case the complainant Sheikhzadeh-Mashgoul (the
“Complainant”) filed a complaint with the British Columbia Human Rights
Tribunal (“Tribunal”) against the respondent Schrenk (the “Respondent”)
alleging employment discrimination based on religion, place of origin and
sexual orientation.
The Complainant worked for an engineering company as a civil
engineer on a road improvement project. The engineering company had
certain supervisory powers over employees of a construction company, the
primary contractor on the project. The construction company employed the
Respondent as a site foreman and superintendent. When the Respondent made
racist and homophobic statements to the Complainant, he was initially removed
from the site but when the harassment continued, the construction company
terminated his employment.
The Complainant immigrated to Canada from Iran and
identified as Muslim. When the Respondent learned of the Complainant’s
origin and religion he made jokes about being blown up by a suicide bomb,
called the Complainant a “fucking Muslim piece of shit”, and asked him whether
he was going to call his gay friend. After the Complainant complained
the Respondent persisted and shouted “go back to your mosque where you came
from”. Such behaviour resulted in the Respondent being removed from the
work site. However, subsequently he sent unsolicited emails to the
Complainant in which he made derogatory insinuations about his sexual
orientation.
The Respondent brought an application to dismiss the
complaint in which he argued that his alleged conduct was not discrimination
“regarding employment” and was consequently beyond the jurisdiction of the
Tribunal. The Respondent’s argument was simple: he was not in a
position of economic authority over the Complainant. He was neither the
Complainant’s employer nor his superior in the workplace. His conduct,
however egregious, could not be considered discrimination “regarding
employment” within the meaning of the Code.
The Tribunal held that it had jurisdiction to deal with the
complaint and denied the Respondent’s application to dismiss the complaint.
The British Columbia Supreme Court dismissed the Respondent’s application for
judicial review, but the Court of Appeal allowed his appeal and found that the
Tribunal had erred in law by concluding that it had jurisdiction over the
complaint.
A 6 – 3 majority of the Supreme Court (Moldaver,
Karakatsanis, Wagner, Gascon, Rowe and Abella) disagreed with the Court of
Appeal and allowed the appeal (Justice Moldaver wrote the majority decision
with a separate concurring decision written by Justice Abella). Justices
McLachlin, Cote and Brown dissented.
The majority held as follows.
The case involved the interpretation of the meaning of the
words “employment” and “person” in the Code. Reading the Code in
line with the modern principle of statutory interpretation and the particular
rules that apply to the interpretation of human rights legislation the
prohibition against discrimination against employees prohibits discrimination
whenever that discrimination has a sufficient nexus with the employment context.
This may include discrimination by their co-workers even when those co-workers
have a different employer. The discrimination in the case had
sufficient nexus to the Complainant’s employment because the Respondent was
integral to the Complainant’s workplace, the impugned conduct had occurred in
the Complainant’s workplace and the Complainant’s work environment was
negatively affected. This contextual interpretation furthers the
purposes of the Code by recognizing how employee vulnerability stems not only
from economic subordination to their employers but also from being a captive
audience to other perpetrators of discrimination such as a harassing
co-worker.
In separate reasons, Justice Abella found that the analysis
requires that the meaning of employment discrimination be considered in a way
that is consistent with the Supreme Court’s well settled human rights
principles and not just the particular words of the Code. Applying these
principles leads to the conclusion that an employee is protected from
discrimination related to or associated with his or her employment, whether or
not he or she occupies a position of authority. As a result, the Tribunal
had jurisdiction to hear the complaint.
The dissenting three judges held that the prohibition against
workplace discrimination in the relevant section of the Code applied only to
employer-employee or similar relationships and authorized claims against those
responsible for ensuring that workplaces are free of discrimination. If
the section were interpreted to allow claims against anyone in the workplace
most of the next section which provides a separate protection against
discrimination by unions and associates would be redundant. The Code
required the Complainant to focus on the employer, i.e. the people responsible
for maintaining a discrimination free workplace. Where the employer fails
to intervene or prevent or correct discrimination the section is engaged.
Importantly in this case, the court expanded human rights
code protection against employment discrimination to encompass discrimination
outside of the confines of the traditional employer-employee relationship.
Regards,
Blair
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