Labour and Employment Law Blog

In today’s Supreme Court of Canada decision in British Columbia Human Rights Tribunal and Schrenk, a split court held that British Columbia’s Human Rights Code provides protection to employees from the discriminatory conduct of persons unrelated to their own employer, provided that the discriminatory conduct arose in their employment setting.

The facts of the case were that the Complainant was an engineer working for a company called Omega and Associates Engineering. Omega had been hired by the municipality of Delta for work on a road project. As part of the work, the Complainant supervised workers of a construction company, Clemas Construction.  Mr. Schrenk, a Respondent, was a site foreman and superintendent employed by Clemas.  Over the course of about nine months, Mr. Schrenk engaged in various inappropriate conduct towards the Complainant, including making derogatory comments about his religion and insinuations about his sexual orientation.  Eventually, Clemas fired Mr. Schrenk.  Soon after Mr. Schrenk was fired, the Complainant filed a complaint with the Tribunal against Mr. Schrenk, Clemas, and Delta.   Each of Mr. Schrenk and Clemas applied to the Tribunal to dismiss the complaint at a preliminary stage, arguing that the Tribunal had no jurisdiction over the complaint since the Complainant was not in an employment relationship with Clemas or Mr. Schrenk.  The Tribunal did not allow the dismissal application and permitted the Complaint to proceed (there has been no decision on the merits yet).  Mr. Schrenk appealed the Tribunal’s refusal to dismiss on a preliminary basis.

Section 13 of the BC Code contains rather unique employment discrimination language in that it prohibits a “person” from discriminating against another person “regarding employment”.   The court found that the use of “person” as opposed to “employer” meant that the legislature of British Columbia intended the Code to have broader application than to just the employer-employee relationship.

The SCC found that:

 “the issue is not whether Mr. Schrenk’s alleged conduct would amount to discrimination; no one disputes this. Rather, the question in this appeal is whether such discrimination was “regarding employment.”

The court concluded that Mr. Schrenk’s conduct was ”regarding employment”:

“The scope of s. 13(1)(b) of the Code is not limited to protecting employees solely from discriminatory harassment by their superiors in the workplace. Rather, its protection extends to all employees who suffer discrimination with a sufficient connection to their employment context. This may include discrimination by their co-workers, even when those co-workers have a different employer. Consequently, the Tribunal did not err in concluding that Mr. Schrenk’s conduct was covered by s. 13(1)(b) despite the fact that he was not [the Complainant’s] employer or superior in the workplace.”

This decision opens the door to claims against persons who engage in discriminatory conduct against workers who are not employed by the same employer as the person engaging in the discriminatory conduct, provided there is a sufficient nexus between the discrimination and the employment context.  The court described the connection necessary to make the complaint as follows:

“In my view, s. 13(1)(b) does not restrict who can perpetrate discrimination. Rather, it defines who can suffer employment discrimination.  In this way, it prohibits discriminatory conduct that targets employees so long as that conduct has a sufficient nexus to the employment context. Determining whether conduct falls under this 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.”