December 11, 2023
The Supreme Court of Canada has addressed (and greatly widened) the scope of “employment” for purposes of human rights legislation in a decision issued on December 15, 2017.
The case originated in British Columbia and involved a civil engineer (the “Complainant”) who was employed on a road improvement project. Like many construction worksites across Canada, many different employers and contractors were involved in the project. The Complainant was himself supervised by a foreman, Mr. Schrenk, whom was employed by a different employer. What was undisputed in the case was that Mr. Schrenk made a number of homophobic and racist statements towards the Complainant.
After the Complainant reported the conduct, Mr. Schrenk was removed from the job site and later fired by his employer. A human rights complaint was then brought against Mr. Schrenk, Mr. Schrenk’s employer, and the employer of the Complainant.
The issue to be determined in Schrenk was whether discriminatory conduct engaged in by someone who lacked employment related authority over a complainant could be categorized as discrimination “regarding employment” for purposes of the British Columbia Human Rights Code (the “BC Code”). If not, the complaint against Mr. Schrenk and his third party employer would not be permitted to proceed.
The Court of Appeal determined that the complaint should not proceed, finding that not all discriminatory comments and actions occurring at a workplace necessarily constitute discrimination “regarding employment” for purposes of the BC Code. The Court of Appeal reasoned that not all insults inflicted upon employees amount to discrimination “regarding employment,” and that the Human Rights Tribunal was without jurisdiction to address complaints made against a person whom 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/her employment”.
The Court of Appeal’s decision was an important one for businesses whose employees work on multi-employer job sites, as it provided greater certainty of the liabilities which might arise from misconduct engaged in by employees of other entities. This was short lived, however, as in December 2017, the Supreme Court of Canada overturned the Court of Appeal’s decision.
The Supreme Court of Canada ruled that the BC Code protects individuals from discriminatory conduct regarding their employment no matter the identity of the perpetrator. In the words of the Court, the BC Code “does not restrict who can perpetrate discrimination” rather it “prohibits discriminatory conduct that targets employees so long as that conduct has a sufficient nexus to the employment context.”
The basis of the Supreme Court’s decision was the specific wording of section 13 of the BC Code, which prohibits a “person” from discriminating against another person “regarding employment”. The Supreme Court reasoned that the use of “person” rather than “employer” served to extend the BC Code’s protection beyond the typical employee/employer relationship.
In the Supreme Court’s view, discrimination “regarding employment” may be made out on an analysis of the following non-exhaustive factors:
- whether the perpetrator was integral to the complainant’s workplace;
- whether the discrimination occurred in the complainant’s workplace; and
- whether the complainant’s work performance or work environment was negatively affected.
The Supreme Court’s decision in Schrenk expands the availability of remedies for claims of discrimination in employment to encompass complaints against perpetrators who are not the employee’s direct employer or superior in the workplace – rather they need only be “integral” to the workplace itself. This could potentially encompass customers, contractors, suppliers and other third parties depending on the circumstances in each case and, in jurisdictions outside of BC, the wording of each province’s unique human rights legislation.
This case was cited favourably in B.C. in British Columbia (Human Rights Tribunal) v. Gibraltrar Mines Ltd. 2023 BCCA 168, and continues to shape the scope of “employment” for purposes of workplace discrimination complaints.
Information provided by Mathews Dinsdale & Clark LLP. The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Mathews Dinsdale & Clark LLP, please visit mathewsdinsdale.com.
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