In a landmark decision released on December 15, 2017, the Supreme Court of Canada determined that the British Columbia Human Rights Code protects individuals from discriminatory conduct perpetrated by employers with whom they have no employment relationship, so long as the discriminatory conduct has a “sufficient nexus with the employment context”. The decision is particularly important to multi-employer workplaces, such as construction sites and other workplaces that have a mix of contractors and employees.
This decision by the Supreme Court of Canada overturned the British Columbia Court of Appeal’s 2016 decision concerning this matter. The Court of Appeal had determined that the British Columbia Human Rights Tribunal (the “Tribunal”) did not have jurisdiction over the complaint because the complainant was not an employee of the corporate respondent.
Court of Appeal disagrees with Human Rights Tribunal
The complainant, Mr. Sheikhzadeh-Mashgoul, worked for Omega and Associates Engineering Ltd. (“Omega”) as a civil engineer on a road improvement project. In that capacity, he supervised work of a construction contractor, Clemas Construction Ltd. (“Clemas”), where the respondent Mr. Schrenk worked as a foreman. While working on the project, Mr. Schrenk made derogatory statements to Mr. Sheikhzadeh-Mashgoul and others with respect to Mr. Sheikhzadeh-Mashgoul’s place of origin, religion, and sexual orientation and sent derogatory emails to Mr. Mashgoul. Omega complained to Clemas, and Clemas terminated Mr. Schrenk’s employment.
Mr. Sheikhzadeh-Mashgoul filed a complaint with the Tribunal alleging discrimination with respect to employment committed by Mr. Schrenk. Mr. Sheikhzadeh-Mashgoul also alleged that Mr. Schrenk’s conduct was permitted or tolerated by Clemas and the owner of the project.
Mr. Schrenk and Clemas brought an application to dismiss Mr. Sheikhzadeh-Mashgoul’s human rights complaint pursuant to s. 27(1) of the British Columbia Human Rights Code (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 “regarding employment” within the meaning of s. 13(1) of the Code because Mr. Sheikhzadeh-Mashgoul was not in an employment relationship with Mr. Schrenk or with Clemas.
The Tribunal held that it had jurisdiction to deal with the complaint and, accordingly, it denied Mr. Schrenk’s and Clemas’ application under s. 27(1)(a) of the Code. The British Columbia Supreme Court dismissed Mr. Schrenk’s application for judicial review, but the British Columbia Court of Appeal allowed Mr. Schrenk’s appeal and found that the Tribunal erred in law by concluding that it had jurisdiction over the complaint.
The Court of Appeal agreed with Mr. Schrenk’s argument that his conduct could not amount to discrimination under the Code, as he had no authority to impose the conduct on the complainant as a condition of the complainant’s employment. In order for the complaint to be within the jurisdiction of the Tribunal, the discrimination would have to have been discrimination regarding employment. In this case, the Court of Appeal held that the discrimination could not have been said to have been regarding employment because Mr. Schrenk had no authority over Mr. Sheikhzadeh-Mashgoul and therefore could not negatively affect Mr. Sheikhzadeh-Mashgoul’s employment and ultimately Mr. Sheikhzadeh-Mashgoul’s ability to support himself financially through his work.
According to the Court of Appeal, the Tribunal did “not have jurisdiction to address a complaint made against one who is rude, insulting or insufferable but who is not in a position to force the complainant to endure that conduct as a condition of his employment” (Schrenk v. British Columbia Human Rights Tribunal, 2016 BCCA 146 at para. 44).
Supreme Court of Canada extends protection of Human Rights Code
The Supreme Court of Canada, in a 6-3 majority decision, overturned the Court of Appeal’s decision and held that Mr. Sheikhzadeh-Mashgoul’s complaint was properly within the jurisdiction of the Tribunal pursuant to s. 13(1)(b) of the Code (British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 at para. 3):
“The scope of 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 the discrimination has a sufficient nexus with the employment context, a contextual analysis focusing on the following (non-exhaustive) factors should be performed:
- Whether the respondent was integral to the complainant’s workplace;
- Whether the impugned conduct occurred in the complainant’s workplace; and
- Whether the complainant’s work performance or work environment was negatively affected.
The Supreme Court of Canada further reasoned that the use of “person” rather than “employer” in s. 13(1)(b) of the Code served to extend the Code’s protection beyond situations where the perpetrator has express authority over the terms and conditions of the complainant’s employment.
The Supreme Court of Canada’s decision in Schrenk is an important one for contractors and employers in British Columbia and in provinces which have human rights legislation containing provisions similar to those found in the Code. It will remain to be seen whether Schrenk is applicable in provinces with human rights legislation that expressly prohibits discrimination by “employers”.
Schrenk may have far reaching impacts on the liability of employers by permitting individuals to proceed with human rights complaints alleging discrimination in employment even against individuals and organizations with whom they work with but have no actual employment relationship.
Employers should be aware that their obligations toward preventing discriminatory conduct in the workplace extend not only to their employees, but also to individuals in the work environment with whom they have no employment relationship. If employers fail to fulfil these obligations, they could find themselves named in a potential human rights complaint.