The Court of Appeal for British Columbia (Court of Appeal) recently concluded in Schrenk v. British Columbia (Human Rights Tribunal) (Schrenk) that the British Columbia Human Rights Tribunal’s (Tribunal) jurisdiction does not extend to a person who is not in a position of power over an employee or otherwise in a position to force the complainant to endure discriminatory conduct as part of, or as a condition of their employment. This sets an important limitation on the Tribunal’s jurisdiction to adjudicate matters where the traditional employment relationship does not exist.
FACTS AND DECISIONS
Edward Schrenk was employed by Clemas Contracting Ltd. (Clemas) as a site foreman on a road improvement project in Delta, British Columbia. The complainant, Mohammadreza Sheikhzadeh-Mashgoul, was a civil engineer employed as the site representative of a consulting engineering firm serving as the contract administrator for the project. In other words, the complainant supervised the work completed by Mr. Schrenk’s employer, Clemas. Mr. Schrenk made derogatory statements to the complainant and others concerning the complainant’s sexual orientation, birth and religion, which were followed up by emails to the complainant to the same effect. Clemas dismissed Mr. Schrenk after the complainant reported this misconduct.
The complainant brought a complaint to the Tribunal against Mr. Schrenk, Clemas, and the City of Delta, the project owner. He claimed that the respondents discriminated against him on the basis of sexual orientation, country of origin and religion and that the behaviour was tolerated by Clemas and Delta. The complaint was withdrawn against Delta, while Clemas and Mr. Schrenk filed an application to dismiss the complaint on the grounds that it was not within the Tribunal’s jurisdiction.
The Tribunal dismissed Mr. Schrenk and Clemas’ application, concluding that although the complainant was an employee of another employer, the Tribunal still had jurisdiction over the complaint. Mr. Schrenk was a “person” under the Human Rights Code (Code); the complainant was an “employee.” The Tribunal stated that it would be “unduly artificial” and not “in keeping with the broad public policy purposes of the Code to exclude employees from the protection of the Code simply because the perpetrator of the discrimination was employed by another employer on the same site.” Mr. Schenk and Clemas brought a petition for judicial review to the Supreme Court of British Columbia (Supreme Court), which dismissed it for reasons set out by the Tribunal. Subsequent to the judgment of the Supreme Court, the complainant withdrew the complaint against Clemas, but continued against Mr. Schrenk. Mr. Schrenk appealed the decision to the Court of Appeal.
The Court of Appeal began its reasons for judgment by noting that the question was not, as the Tribunal and the Supreme Court had concluded, whether Mr. Schrenk fell within the definition of a “person” or whether the complainant was an “employee” under the Code, but whether the complaint against Mr. Schrenk was a complaint about conduct that could be amount to discrimination “regarding employment.” The Court of Appeal characterized the actions of the Tribunal as taking “jurisdiction over prohibited conduct of any person that might be said to have adversely affected an employee in their employment.”
For the Court of Appeal, this went too far. The Court of Appeal made it clear that not all insults amount to discrimination “in relation to employment”, and the legislature could not be understood to have granted the Tribunal jurisdiction to regulate all discriminatory burdens imposed on people regardless of the ability of the perpetrator to impose such burdens on the complainant’s economic life:
 There is a difference between the emotional and psychological burdens imposed upon disadvantaged people as a result of ignorant, malicious, or thoughtless comments made by those they encounter in day-to-day life, and those which amount to discrimination regarding employment. With respect to the former, a human rights tribunal may be able to do nothing. Bigots and xenophobes impose invidious and lasting harms, but they may be avoided on the street without fear of employment-related economic consequences. The subjects of discrimination should not have to bear any economic burden as a result of that discrimination. That is the sphere in which the legislature acted, and that is one of the ills that the Code expressly seeks to address.
The Court of Appeal concluded that the Tribunal (and the Supreme Court) erred in concluding that the Tribunal had jurisdiction in circumstances where Mr. Schrenk was not clothed with any power to impose unwelcome misconduct on the complainant as a condition of employment. The Tribunal certainly had jurisdiction to consider whether a person in a position of authority forced the complainant to tolerate the wrongdoing by Mr. Schrenk, that is, whether the complainant’s employer failed in its response to discriminatory conduct. The Tribunal did not have jurisdiction to address a complaint against a powerless, but rude, third party to an employment relationship.
In Schrenk, the Tribunal exceeded its jurisdiction by seeking to extend the protection of the Code to independent third parties unrelated to a complainant’s employer. The Court of Appeal has clarified the scope of the Code to exclude misconduct by individuals at a worksite who are unrelated to, and outside the control of, the actual employer. Not every discriminatory act in a workplace will trigger the employment protections of the Code.