The BC Court of Appeal recently ruled that the BC Human Rights Tribunal could not take jurisdiction over a discrimination complaint where the alleged harasser was employed by a different employer operating at the same work location as the complainant. The appeal court found that the alleged harasser was not in a position of control over the complainant.Therefore the Tribunal had no jurisdiction to proceed with the complaint.
A leave to Appeal application to the Supreme Court of Canada has been filed.
In Schrenk v. British Columbia (Human Rights Tribunal) (PDF) the BC Human Rights Tribunal originally ruled that it did have jurisdiction to hear the discrimination complaint. The BC Supreme Court upheld that decision. It was then overturned by the BC Court of Appeal.
The human rights complaint was brought by a civil engineer who worked with a work site foreman employed by a different company. The complaint was originally made against the site foreman and the owner of the road improvement project. The complaint was dismissed as against the owner, but proceeded as against the site foreman. It was alleged he made derogatory statements on the basis of the complainant's place of birth, religion and sexual orientation.
Before the Tribunal, an argument was made that the site foreman did not control the employment relationship of the complainant and therefore there was no jurisdiction under section 13 of the BC Human Rights Code ("Code"). When the Tribunal found that it did have jurisdiction, a judicial review was launched. The BC Supreme Court sided with the Tribunal, finding that the Code should not be interpreted in an overly narrow fashion, particularly given that there are many work sites where there is more than one employer operating at the location.
The Court of Appeal disagreed, finding that the substance of the issue was whether the complaint was about conduct that might amount to discrimination "regarding employment". The Court of Appeal found that the issue of control over the complainant was a relevant factor. The Tribunal would have jurisdiction to consider whether the complainant's employer played a role in allowing any alleged harassment to occur or continue. But, the Court of Appeal found, the Tribunal did not have jurisdiction over the alleged harasser.The parties were not employed by the same employer.
Where Do We Go From Here
If leave to appeal to the Supreme Court of Canada is granted, we expect that we may see intervenors applying to be involved, given the potential impact of the decision. The BC Supreme Court was right in noting that there are many work places where there are more than one employer, so the decision may have a broad impact. The test for the element of control required also could be broadly applied so that an argument could be made that harassment by a peer employee is not within the jurisdiction of the Tribunal.