The Supreme Court of Canada has recently released its decision in British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, on appeal from the British Columbia Court of Appeal. This decision expands the scope of protection under Human Rights legislation into non-traditional workplace relationships.
A case of workplace discrimination where the parties have no employment relationship
The complainant, Mohammadreza Sheikhzadeh-Mashgoul, worked on a construction project as a civil engineer. He was harassed on site by a site foreman and superintendant, Edward Schrenk, who made racist and homophobic statements directed at Sheikhzadeh-Mashgoul. Of particular significance, and as is often the case on a construction site, the two men had different employers.
Sheikhzadeh-Mashgoul brought a complaint against both Schrenk and his employer, both of whom argued that the Tribunal had no jurisdiction to hear the complaint because Sheikhzadeh-Mashgoul had no employment relationship with either of them. While the Tribunal found that it had jurisdiction despite the lack of employment relationship, this was later overturned on appeal to the British Columbia Court of Appeal on the grounds that the Human Rights Code only applied when the respondent was in a position to force the complainant to endure the discrimination as a condition of employment.
Supreme Court of Canada decision focused on the issue of context
A majority of the Supreme Court of Canada held the appeal should be allowed, and Sheikhzadeh-Mashgoul’s complaint against Schrenk and Schrenk’s employer could proceed despite the lack of direct employment relationship with Sheikhzadeh-Mashgoul.
In reasons delivered by Justice Rowe, the Court instead focused on the issue of context. There must be a sufficient nexus with the employment context, but the prohibition against discrimination is not limited by the identity of a co-worker’s employer.
The Court held that a contextual analysis focuses on the following factors, which were not exhaustive:
- 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.
Justice Rowe further reasoned that the specific wording of the Code supported the broader interpretation, as it prohibits a “person” from discriminating “regarding employment,” which wording was sufficiently broad to include the relationships between Sheikhzadeh-Mashgoul and both Schrenk and his employer. While legislation in some provinces could easily bear a similar interpretation, others are not as clear – in Alberta, for example, the Human Rights Code prohibits discrimination by “employers.”
In her concurring reasons, Justice Abella, took a broader, more purposive view. She reasoned that the Court’s analysis requires “that we consider the meaning of employment discrimination 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” (at para. 73).
Balancing the decisions of Justice Rowe and Justice Abella is the dissent of outgoing Chief Justice McLachlin. McLachlin would have dismissed the appeal on the basis that Schrenk and his employer had no responsibility over Sheikhzadeh-Mashgoul. This approach, she reasoned, was consistent with the text, context, and purpose of the Code and human rights jurisprudence.
It will remain to be seen which approach will win the day where the wording of the human rights legislation does not lend itself as easily to a broader interpretation.