British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 – Human rights — Human Rights Tribunal — Jurisdiction

On appeal from a judgment of the British Columbia Court of Appeal (2016 BCCA 146), setting aside a decision of Brown J. (2015 BCSC 1342).

S‑M worked for Omega and Associates Engineering Ltd. as a civil engineer on a road improvement project. Omega had certain supervisory powers over employees of Clemas Construction Ltd., the primary construction contractor on the project. Clemas employed S as site foreman and superintendent. When S made racist and homophobic statements to S‑M on the worksite, S‑M raised the comments with Omega. Following further statements by S, Omega asked Clemas to remove S from the site. Clemas did so without delay, but S continued to be involved on the project in some capacity. When the harassment continued, Clemas terminated S’s employment.

S‑M filed a complaint before the British Columbia Human Rights Tribunal against S alleging discrimination on the basis of religion, place of origin, and sexual orientation. S applied to dismiss the complaint, arguing that s. 13 of the Human Rights Code had no application because S‑M was not in an employment relationship with S. The Tribunal held that it had jurisdiction to deal with the complaint and, accordingly, it denied S’s application under s. 27(1)(a) of the Code. The British Columbia Supreme Court dismissed S’s application for judicial review, but the Court of Appeal allowed S’s appeal and found that the Tribunal erred in law by concluding that it had jurisdiction over the complaint.

Held (6-3): The appeal should be allowed.

Per Moldaver, Karakatsanis, Wagner, Gascon and Rowe JJ.:

Section 13(1)(b) of the Code is not limited to protecting employees solely from discriminatory harassment by their superiors in the workplace. 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, s. 13(1)(b) prohibits discrimination against employees 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.

In determining whether discriminatory conduct has a sufficient nexus with the employment context, the Human Rights Tribunal must conduct a contextual analysis that considers all relevant circumstances. Factors which may inform this analysis include: (1) whether the respondent was integral to the claimant’s workplace; (2) whether the impugned conduct occurred in the claimant’s workplace; and (3) whether the claimant’s work performance or work environment was negatively affected. These factors are not exhaustive and their relative importance will depend on the circumstances. 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.

This contextual approach to determining whether conduct amounts to discrimination “regarding employment” is supported by the text, the scheme and the purpose of the Code. It is equally supported by the legislative history of the Code and it aligns with the recent jurisprudence.

The text of s. 13(1)(b) prohibits employment discrimination by any “person”. In the context of the Code, the term “person” defines the class of actors against whom the prohibition in s. 13(1)(b) applies. The ordinary meaning of “person” is broad, and encompasses a broader range of actors than merely any person with economic authority over the complainant. The definition of “person” in s. 1 of the Code is not exhaustive and provides additional meanings that supplement its ordinary meaning. Next, the words “regarding employment” are critical because they delineate the kind of discrimination that s. 13(1)(b) prohibits. In this case, they indicate that the discrimination at issue must be related to the employment context in some way without solely prohibiting discrimination within hierarchical workplace relationships. Section 13(1)(b) defines who can suffer workplace discrimination rather than restricting who can perpetrate discrimination. In this way, it prohibits discriminatory conduct that targets employees so long as that conduct is sufficiently related to the employment context.

The scheme of the Code reinforces this contextual interpretation of s. 13(1)(b). First, the presumption against redundancy in legislative drafting underpins the view that the prohibition against discrimination “regarding employment” applies to more than just employers, who are already subject to a prohibition against discrimination “regarding any term or condition of employment”. Further, where the Code seeks to limit the class of actors against whom a particular prohibition applies, it employs specific language which contrasts with the use of the general term “person”. Finally, the structure of the Code supports an approach that views employment as a context requiring remedy against the exploitation of vulnerability rather than as a relationship needing unidirectional protection.

The modern principle of interpretation requires that courts approach statutory language in the manner that best reflects the underlying aims of the statute. Here, the contextual approach aligns with the remedial purposes set out in s. 3 of the Code as it gives employees a greater scope to obtain remedies before the Tribunal.

Finally, while the legislative history is not determinative, it indicates that the British Columbia Legislature intended to expand the scope of s. 13(1)(b) when it removed the word “employer” and replaced it with the much broader term “person”.

Consequently, applying the correctness standard of review, the Tribunal did not err in concluding that S’s conduct was covered by s. 13(1)(b) despite the fact that he was not S‑M’s employer or superior in the workplace. As the foreman of the worksite, S was an integral and unavoidable part of S‑M’s work environment. S’s discriminatory behaviour had a detrimental impact on the workplace because it forced S‑M to contend with repeated affronts to his dignity. This conduct amounted to discrimination regarding employment: it was perpetrated against an employee by someone integral to his employment context. S‑M’s complaint was consequently within the jurisdiction of the Tribunal pursuant to s. 13(1)(b) of the Code.

Per Abella J.:

The issue in this case is whether employment discrimination under the British Columbia Human Rights Code can be found where the harasser is not in a position of authority over the complainant. The analysis requires that the meaning of employment discrimination be considered in a way that is consistent with, and emerges from, the 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. The Human Rights Tribunal, as a result, has jurisdiction to hear the complaint.

The starting point for the discrimination analysis is the prima facie test for discrimination set out in Moore v. British Columbia (Education), [2012] 3 S.C.R. 360. In the employment context, the complainant must demonstrate that he or she has a characteristic protected under the Code, has experienced an adverse impact “regarding employment”, and that the protected characteristic was a factor in the adverse impact. The question posed by s. 13(1)(b) is whether the complainant has experienced an adverse impact related to or associated with his or her employment. Section 13(1)(b) is meant to protect all employees from the indignity of discriminatory conduct in a workplace, verbal or otherwise. The discrimination inquiry is concerned with the impact on the complainant, not the intention or authority of the person who is said to be engaging in discriminatory conduct. The key is whether that harassment has a detrimental effect on the complainant’s work environment. Discrimination can and does occur in the absence of an economic power imbalance. It cannot depend on technical lines of authority which may end up defeating the goals of human rights legislation. All individuals have the right to be protected from discrimination in the workplace, including those in a position of authority. This approach is responsive to the realities of modern workplaces, many of which consist of diverse organizational structures.

While employers have a special duty and capacity to address discrimination, this does not prevent individual harassers from also potentially being held responsible, whether or not they are in authority roles. Prohibiting all “persons” in a workplace from engaging in discrimination recognizes that preventing employment discrimination is a shared responsibility among those who share a workplace. This is especially so where the employer’s best efforts are inadequate to resolve the issue or where, as here, the subject of the assault himself occupies a position of some authority. The harasser’s degree of control and ability to stop the offensive conduct is clearly relevant, but this goes to the factual matrix, not to the jurisdiction of the Tribunal to hear the complaint.

Per McLachlin C.J. and Côté and Brown JJ. (dissenting):

The workplace discrimination prohibition in s. 13(1)(b) of the Human Rights Code applies only to employer‑employee or similar relationships and authorizes claims against those responsible for ensuring that workplaces are free of discrimination. This conclusion is consistent with the text, context and purpose of s. 13(1)(b), as well as with the jurisprudence. Therefore, the Human Rights Tribunal had no jurisdiction over the complaint.

The text of the provision, read as a whole, suggests that the Legislature was targeting discrimination committed directly or through inaction by an employer or a person in an employer‑like relationship with the complainant. Section 1 of the Code defines “employment” in terms of the relationship between the complainant and the employer, master or principal which suggests that there is something about the nature or extent of responsibility over work or the workplace that defines who can perpetrate discrimination “regarding employment” for the purpose of s. 13(1)(b). The use of the word “person” at the outset of s. 13(1) neither expands nor limits the ambit of the section because the words controlling the ambit of the protection are “regarding employment”.

A contextual reading of s. 13(1) also supports that view. First, s. 14 provides a separate protection against discrimination by unions and associations. If s. 13(1)(b) were interpreted so as to allow claims against anyone in the workplace, most of s. 14 would be redundant. Second, the scheme of the Code suggests that ss. 7 to 14 not intended to govern private acts of discrimination between individuals in a general sense. In provisions where the prohibition initially appears broad enough to catch private communications or interactions between private citizens more generally, specific exclusions are set out. No such exclusions are present in s. 13(1)(b), simply because it was not intended to cover such broad claims. Third, the scheme of the Code also supports the view that the Legislature was concerned with power imbalances — rather than targeting all acts of discrimination, it narrowed its focus to discrimination by those in a position of power over more vulnerable people. Fourth, if s. 13(1)(b) enables a claim based on emails sent after S was removed from the project and workplace, it is not clear how s. 13(1)(b) and s. 7(2) can be reconciled. Under that provision, no complaint can be brought on the basis of a discriminatory, though private, communication between individuals. Finally, s. 44(2) of the Code confirms the Legislature’s intent to target discrimination arising from the employment or equivalent relationship. It makes employers and their equivalents respondents in workplace discrimination claims.

Focussing on those responsible for maintaining a discrimination‑free workplace also upholds the Code’s purpose. Where they fail to intervene to prevent or correct discrimination, s. 13(1)(b) is engaged. While this interpretation may preclude claims under the Code against harassing co‑workers, an employee’s remedy is to go to the employer or person responsible for providing a discrimination‑free workplace. If the employer fails to remedy the discrimination, the employee can bring a claim against the employer under s. 43 of the Code.

Finally, an interpretation of s. 13(1)(b) predicated on the responsibilities of employers and their equivalents is consistent with the jurisprudence, whereas the broad interpretation proposed by the majority would conflict with the jurisprudence in two ways. First, it would narrow the principle that the nature of the relationship between complainant and respondent is dispositive of whether s. 13(1)(b) applies. Second, it is difficult to see how a co‑worker like S could ever claim a bona fide occupational requirement as a justification for his conduct.

Reasons for judgment: Rowe J. (Moldaver, Karakatsanis, Wagner and Gascon JJ. concurring)

Concurring Reasons: Abella J.

Dissenting Reasons: McLachlin C.J. (Côté and Brown JJ. concurring)

Neutral Citation: 2017 SCC 62

Docket Number: 37041