Employment Discrimination Not Confined to Employer-Employee Context

Authors: Lynsey Gaudin, Tessa Rowland

In its recent decision in British Columbia Human Rights Tribunal v Schrenk, 2017 SCC 62 (“Schrenk”), the Supreme Court of Canada has expanded the protections afforded to employees by section 13 of the British Columbia Human Rights Code (the “Code”).

With this decision, the Court has recognized protection for employees from discrimination in any term or condition of their employment regardless of whether the discrimination is perpetrated by employers/superiors or third parties. So long as the discrimination in question has a sufficient nexus with the employment context of the individual being discriminated against, the individual will be protected by section 13 of the Code, which affords protections to employees from employment-related discrimination and harassment.

Schrenk Background

Edward Schrenk (“Mr. Schrenk”) was a site foreman employed by Clemas Construction Ltd. (“Clemas”) on a road improvement project from 2013 to 2014. Mohammadreza Sheikhzadeh-Mashgoul (“Mr. Sheikhzadeh-Mashgoul”) was a civil engineer employed by Omega and Associates Engineering Ltd. (“Omega”) on the same road improvement project. Omega is a consulting engineering firm, which served as the project’s contract administrator, and Mr. Sheikhzadeh-Mashgoul was Omega’s representative on the project. Employed by two separate companies, Mr. Schrenk and Mr. Sheikhzadeh-Mashgoul were neither employees of the same employer nor employers of one another.

Section 13 of the Code

Mr. Sheikhzadeh-Mashgoul filed a complaint with the British Columbia Human Rights Tribunal (the “Tribunal”), alleging that Mr. Schrenk had made discriminatory comments to him on the project regarding his religion, country of origin and sexual orientation. These comments, Mr. Sheikhzadeh-Mashgoul stated, amounted to employment discrimination under section 13 of the Code.

The issue at hand was not whether the discriminatory comments were made. Instead, Mr. Schrenk responded with an application to dismiss the complaint, arguing that the discrimination was not “regarding employment,” as Mr. Schrenk was neither the employer nor the superior of Mr. Sheikhzadeh-Mashgoul, and therefore the complaint was beyond the scope of section 13 of the Code.

Tribunal’s Ruling

In its reasons, the Tribunal cited McCormick v Fasken, Martineau, DuMoulin LLP, 2014 SCC 39, which stated that the public purpose of the Code is to prevent “arbitrary disadvantage or exclusion based on enumerated grounds, so that individuals deemed to be vulnerable by virtue of a group characteristic can be protected from discrimination”.

The Tribunal found that the public purpose of the Code leant itself to a broad interpretation regarding employment, and that “[i]t would be unduly artificial and not in keeping with the broad public policy purposes of the Code to exclude employees on a construction site from the protections mandated by section 13 simply because the alleged perpetrator of discriminatory behaviour worked for another employer on that site.”

SCC Decision

The Supreme Court of Canada upheld the Tribunal’s ruling, noting that section 13 clearly states a person must not discriminate against a person, and that while the Code’s definition of “person” includes employers, this definition is not exhaustive. The SCC similarly found that the use of “regarding employment” in section 13, when read in light of the Code’s definition of “person,” does not restrict who can discriminate, but rather who can be the subject of discrimination.

Schrenk highlights that section 13 employment discrimination is not confined solely to an employer-employee context, but rather applies to employment more generally.

When examining employment discrimination under section 13, the Supreme Court of Canada recommended the following non-exhaustive analysis:

  1. Whether the respondent was integral to the complainant’s workplace;
  2. Whether the impugned conduct occurred in the complainant’s workplace; and
  3. Whether the complainant’s work performance or work environment was negatively affected.

Whether the employment discrimination took place between an employer and an employee is not a determinative factor.

Key Takeaways

An important takeaway from Schrenk is that employers could now be liable for employment discrimination based on their employees’ actions against non-employed individuals.

This is due to the liability imposed by section 44(2) of the Code, which states that “[a]n act or thing done or omitted by an employee, officer, director, official or agent of any person within the scope of his or her authority is deemed to be an act or thing done or omitted by that person.”

While the legislation at issue in the Schrenk decision was the British Columbia Human Rights Code, similar wording exists in other human rights codes throughout Canada. As the Schrenk decision has been determined by Canada’s highest court, it will likely have a significant effect on how similar issues are handled by human rights tribunals/commissions in other jurisdictions as well.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.