December 19, 2017
Last year the British Columbia Court of Appeal issued reasons in Schrenk v. British Columbia Human Rights Tribunal, 2016 BCCA 146, finding that not all discriminatory comments and actions which occurred at a workplace necessarily constituted discrimination “regarding employment” for purposes of British Columbia’s Human Rights Code. Our previous article concerning this decision can be found here. The Supreme Court of Canada has now overturned this decision in its decision from December of this year: British Columbia Human Rights Tribunal v. Edward Schrenk 2017 SCC 62 (“Schrenk”).
The Supreme Court’s decision in Schrenk is an important one for employers across the country. It may have far reaching impacts on the liability of employers by permitting individuals to proceed with complaints alleging discrimination in employment even against individuals and organizations with whom they have no actual employment relationship.
The complainant in Schrenk was a civil engineer working for a consulting firm on a road improvement project. In this capacity he supervised workers on the site, including one particular worker, Mr. Schrenk, who repetitively made derogatory comments to the complainant regarding his place of birth, religion, and sexual orientation. After enduring mistreatment for a time, the complainant filed a complaint with British Columbia’s Human Rights Tribunal against Mr. Schrenk, as well as both his and Mr. Schrenk’s employer alleging they discriminated against him in the course of his employment.
Both Mr. Schrenk and Mr. Schrenk’s employer applied to dismiss the complaint on the basis that they were not in an employment relationship with the complainant, and therefore the Tribunal had no jurisdiction over the complaint. The Tribunal denied the application, a decision upheld by British Columbia’s Supreme Court on judicial review. This was, however, overturned by British Columbia’s Court of Appeal, which agreed with Mr. Schrenk that the Tribunal did not have jurisdiction.
The Supreme Court of Canada disagreed, finding that the British Columbia Human Rights Code (the “BC Code”) protects individuals from discriminatory conduct regarding their employment no matter the identity of the perpetrator. In the words of the Court, the BC Code “does not restrict who can perpetrate discrimination” rather it “prohibits discriminatory conduct that targets employees so long as that conduct has a sufficient nexus to the employment context.”
The basis of the Supreme Court’s decision was the specific wording of section 13 of the BC Code, which prohibits a “person” from discriminating against another person “regarding employment”. The Supreme Court reasoned that the use of “person” rather than “employer” served to extend the BC Code’s protection beyond situations where the perpetrator has express authority over the terms and conditions of the complainant’s employment. In the Court’s view discrimination “regarding employment” may be made out on an analysis of the following non-exhaustive factors:
With respect to Schrenk, the matter has been returned to the BC Human Rights Tribunal which will proceed with a hearing concerning the complaint against Mr. Schrenk and his employer.
Outside of British Columbia, the impact of this decision will largely depend on the wording of each province’s unique human rights legislation. Some provinces, such as Alberta, specify in their human rights legislation that it is only discrimination in employment by “employers” which is prohibited. Saskatchewan, as a contrasting example, expressly prohibits discrimination by both employers and employees. Other jurisdictions, such as Newfoundland, the Yukon Territories and Nunavut, beyond prohibiting discrimination in employment, also prohibit “harassment” in workplace establishments or employment by any person.
For those contractors and employers in provinces with human rights statutes containing provisions similar to that found in BC’s Code (for instance, Ontario, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, and the Northwest Territories), the Schrenk decision may signal new liability on the horizon. Following the logic employed by the Supreme Court in Schrenk, your organization may potentially be named in employment related human rights complaints not only by your employees, but also now by individuals with whom you have no employment relationship.
If you have questions regarding the impact of these changes, or steps you can take to reduce their impact, please do not hesitate to contact a Mathews Dinsdale lawyer.
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