SCC: Human Rights Code Protection from Discrimination "Regarding Employment" Applies Outside Employer-Employee Relationships

In British Columbia Human Rights Tribunal v. Schrenk, a 6-3 majority of the Supreme Court of Canada (SCC) found that the B.C. Human Rights Code's (Code) prohibition against discrimination "regarding employment" prohibits "discrimination against employees whenever that discrimination has a sufficient nexus with the employment context." This may include discrimination "by co-workers, even when those co-workers have a different employer."

The impacts of this decision will be most acute in multi-employer workplaces, where complaints of employment discrimination may now be advanced even where the complainant and respondent are not in an employment relationship. The range of respondents could include not only co-workers working for the same employer, but also, on the right facts, workers employed by another employer, and employers who are not in an employment relationship with the complainant.

What You Need To Know

• Human rights code protection against employment discrimination has been broadened to encompass workplace discrimination outside the confines of the traditional employer-employee relationship.
• Determining whether discriminatory conduct has a sufficient nexus with employment requires "a contextual analysis that considers all relevant circumstances."
• Relevant circumstances include whether the discriminator 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.
• According to the SCC majority, "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."
• In this case, the complainant was an employee of the supervising engineer at a construction site, while the respondent was an employee of the contractor. The respondent made a number of discriminatory comments to the complainant at the worksite and in private emails. Applying the framework described above, the SCC found that these comments were discrimination "regarding employment."

Background

The complainant was an engineer working with Omega and Associates Engineering Ltd. (Omega), an engineering firm hired to supervise a road improvement project. He supervised work by the primary construction contractor, Clemas Contracting Ltd (Clemas). Schrenk, the respondent, was employed by Clemas as a site foreman and superintendent.

From September to December 2013, Schrenk made a number of discriminatory comments to the complainant at the worksite. After an incident in December 2013, Schrenk was removed from the worksite at the request of the owner, the Municipality of Delta (Delta) and Omega. The contract between Delta and Clemas specified that Omega could ask for the removal from the worksite of any worker who appeared “to be incompetent or to act in a disorderly or intemperate manner.”

In March 2014, after his removal from the worksite, Schrenk sent an email to the complainant copying two of Schrenk’s supervisors in which he made further discriminatory comments about the complainant. Clemas terminated Schrenk’s employment after Schrenk sent another similar email the next day.

On April 3, 2014, the complainant filed a complaint with the B.C. Human Rights Tribunal (Tribunal) against Schrenk, Clemas and Delta, alleging discrimination “regarding employment” under section 13(1)(b) of the Code. He later withdrew the claim against Delta.

Proceedings Before the B.C. Human Rights Tribunal

Schrenk and Clemas applied to dismiss the complaint. They argued that the Tribunal did not have jurisdiction over the complaint because the complainant was not in an employment relationship with either of them. The Tribunal dismissed the application. The Tribunal held that section 13 of the Code "protects those in an employment context," including a complainant who is an employee "who suffers a disadvantage in his or her employment in whole or in part because of his or her membership in a protected group." According to the Tribunal, section 13's protections against discrimination "regarding employment" are not limited to discrimination by an employer.

Proceedings Before the B.C. Supreme Court and Court of Appeal

The B.C. Supreme Court dismissed Schrenk's application for judicial review of the Tribunal's decision. The Court found that restricting section 13(1)(b) to claims against one's employer or against another employee of that same employer would "be contrary to common sense and to current employment circumstances."

The B.C. Court of Appeal allowed Schrenk's appeal. The Court of Appeal found that discrimination "regarding employment" was not so wide as to encompass "conduct [by] any person that might be said to have adversely affected an employee in their employment." Rather, the Court of Appeal found that discrimination regarding employment "requires the improper exercise of economic power in the traditional "master-servant" relationship." According to that Court, "this is all that s. 13(1)(b) is intended to guard against. Thus, the Tribunal's jurisdiction is limited to addressing complaints against those who have the power to inflict discriminatory conduct as a condition of employment."

The Appeal to the SCC

The Tribunal's appeal to the SCC was allowed, with Justice Rowe writing on behalf of a five member majority and Justice Abella writing separate concurring reasons.

Following a detailed review of the purpose and background of the Code, Justice Rowe explained that the Tribunal was correct to adopt a "broad interpretation of s. 13(1)(b)." Justice Rowe agreed with the Tribunal that "the term "regarding employment" does not solely prohibit discrimination within hierarchical workplace relationships." Instead, determining whether conduct falls under section 13(1)(b)'s prohibition requires a contextual approach that looks to the particular facts of each claim to determine whether there is a sufficient nexus between the discrimination and the employment context. If there is such a nexus, then the perpetrator has committed discrimination "regarding employment" and the complainant can seek a remedy against that individual." Justice Rowe concluded that Schrenk's actions constituted discrimination "regarding employment."

The majority of the SCC explained that their decision builds on the SCC's prior decision in McCormick v. Fasken Martineau DuMoulin LLP (McCormick). According to the majority, McCormick was about whether an individual "who allegedly suffered discrimination was in an employment relationship for the purpose of the Code. In other words, McCormick identified who qualifies for the protection of section 13 by virtue of being an employee." However, McCormick "does not address the question of who may perpetrate discrimination regarding employment."

Chief Justice McLachlin, writing in dissent on behalf of herself and two others, would have dismissed the appeal. The Chief Justice agreed with the B.C. Court of Appeal that the Code focusses on the employment relationship and authorizes only claims against those who are responsible for a discrimination-free workplace. The Code envisages that employees should look to their employer, not others, to remedy the discrimination.

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