Introduction

The British Columbia Court of Appeal has ruled that the British Columbia Human Rights Tribunal could not take jurisdiction over a discrimination complaint where the alleged harasser was employed by a different employer at the same work location. The appeal court found that the alleged harasser was not in a position of control over the complainant. Therefore, the tribunal had no jurisdiction to proceed with the complaint.

In Schrenk v British Columbia (Human Rights Tribunal) the British Columbia Human Rights Tribunal originally ruled that it did have jurisdiction to hear the discrimination complaint. The British Columbia Supreme Court upheld that decision. It was then overturned by the British Columbia Court of Appeal.

Leave to appeal to the Supreme Court of Canada has been filed.

Facts

The human rights complaint was brought by an engineer who worked with a worksite foreman employed by a different company. The complaint was originally made by the civil engineer against the site foreman and the owner of the road improvement project. The complaint was dismissed as against the owner, but proceeded as against the site foreman. It was alleged that the site foreman has made derogatory statements on the basis of the complainant's place of birth, religion and sexual orientation.

Decision

Before the tribunal, an argument was made that the site foreman did not control the employment relationship of the complainant, and that therefore there was no jurisdiction under Section 13 of the British Columbia Human Rights Code. When the tribunal found that it did have jurisdiction, a judicial review was launched. The British Columbia Supreme Court sided with the tribunal, finding that the code should not be interpreted too narrowly, particularly given that there are many worksites where there is more than one employer in operation.

The appeal court disagreed, finding that the substance of the issue was whether the complaint was about conduct that might amount to discrimination "regarding employment". The appeal court found that the issue of control over the complainant was a relevant factor. The tribunal would have jurisdiction to consider whether the complainant's employer played a role in allowing any alleged harassment to occur or to continue. However, the appeal court found that the tribunal did not have jurisdiction over the alleged harasser as the parties were not employed by the same employer.

Comment

If leave to appeal to the Supreme Court of Canada is granted, intervenors are expected to apply to be involved, given the decision's potentially broad impact. The British Columbia Supreme Court was right to the extent that there are many workplaces where there is more than one employer, so the decision may have a broad impact. The test for the element of control required could also be broadly applied so that an argument could be made that harassment by a peer employee is not within the tribunal's jurisdiction.

For further information on this topic please contact Lorene A Novakowski at Fasken Martineau DuMoulin LLP by telephone (+1 604 631 3131) or email (lnovakowski@fasken.com). The Fasken Martineau DuMoulin LLP website can be accessed at www.fasken.com.

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