37041  British Columbia Human Rights Tribunal v. Edward Schrenk


Human rights – Discrimination – Employment

The applicant Mr. Sheikhzadeh-Mashgoul (“Mr. Mashgoul”) is a civil engineer who represented a consulting engineering firm on a road improvement project. In that capacity, he supervised work of a construction company where the respondent Mr. Schrenk worked as foreman. While working on the project, Mr. Schrenk made derogatory statements to Mr. Mashgoul and others with respect to Mr. Mashgoul’s place of origin, religion and sexual orientation and sent him derogatory emails. Mr. Mashgoul’s employer complained to Mr. Schrenk’s employer, and Mr. Schrenk’s employment was terminated.

Mr. Mashgoul filed a complaint with the British Columbia Human Rights Tribunal (“Tribunal”) alleging discrimination with respect to employment by Mr. Schrenk. He also alleged that the conduct was permitted or tolerated by Mr. Schrenk’s employer and the owner of the project.

Mr. Schrenk and his employer brought an application to dismiss the complaint pursuant to s. 27(1) of the Code on the basis that the complaint was not within the jurisdiction of the Tribunal. Mr. Schrenk submitted that the alleged conduct did not constitute “discrimination in employment” within the meaning of s. 13(1) of the Code because of the limited nexus between the conduct and employment. The British Columbia Human Rights Tribunal held that it had jurisdiction to hear the complaint. The Supreme Court of British Columbia dismissed a petition for judicial review of that ruling. The Court of Appeal for British Columbia allowed the appeal and dismissed the complaint.

36983  Williams Lake Indian Band v. Her Majesty the Queen in Right of Canada as represented by the Minister of Aboriginal Affairs and Northern Development Canada


Aboriginal law – Crown – Fiduciary duty

Williams Lake Indian Band filed a specific claim against Canada with the Specific Claims Tribunal, pursuant to the federal Specific Claims Tribunal Act,based on: 1) the alleged failure of the pre-Confederation colony of British Columbia to act in the Band’s best interests by protecting their lands; and 2) the alleged failure of Canada to create reserves for the Band, following B.C.’s entry into Confederation in 1871. The claim involves two lots totalling nearly 2,000 acres. The claim alleges that B.C. failed to meet its legal obligation to prevent settlers from pre-empting lands on these two lots, and that Canada failed to meet its legal obligations to create reserves for the Band once B.C. entered Confederation in 1871. Reserve lands were eventually set aside for Williams Lake as reserves, in 1881; although the amount of land (over 4,000 acres) exceeded the area covered by the two lots, the lands in question were different than those in the original claim.

The claim was bifurcated into validity and compensation (if necessary) phases. The Specific Claims Tribunal determined that Williams Lake had established the validity of the claim against the federal Crown: there were pre-emptive purchases of the lands by settlers, in contravention of colonial policy and law; such contraventions constituted a breach of a legal obligation, pursuant to colonial legislation pertaining to reserved lands; B.C. failed to act honourably and was in breach of its fiduciary duties at common law, by failing to put the Indian interest in settlement lands ahead of settlers’ interests; Canada was liable for B.C.’s pre-Confederation breaches of legislation and fiduciary duty, pursuant to the Act; and Canada also breached its post-Confederation fiduciary duties by failing to provide reserve lands to Williams Lake. The Federal Court of Appeal allowed the Crown’s application for judicial review, concluding that Canada’s post-Confederation actions remedied any potential earlier fiduciary breaches by B.C. and fulfilled any fiduciary duty owed by Canada. The Court of Appeal concluded that Canada did not breach any post-Confederation legal obligation to Williams Lake, and was not liable for any breaches of pre-Confederation legal obligations by B.C. By way of remedy, the specific claim was dismissed.