SCC rules human rights legislation covers discriminatory conduct with sufficient nexus to employment.
Friday, December 15, 2017 - Filed in: Court Cases
"S‑M worked for Omega and Associates Engineering Ltd. as a civil engineer on a road improvement project. Omega had certain supervisory powers over employees of Clemas Construction Ltd., the primary construction contractor on the project. Clemas employed S as site foreman and superintendent. When S made racist and homophobic statements to S‑M on the worksite, S‑M raised the comments with Omega. Following further statements by S, Omega asked Clemas to remove S from the site. Clemas did so without delay, but S continued to be involved on the project in some capacity. When the harassment continued, Clemas terminated S’s employment.
S‑M filed a complaint before the British Columbia Human Rights Tribunal against S alleging discrimination on the basis of religion, place of origin, and sexual orientation. S applied to dismiss the complaint, arguing that s. 13 of the Human Rights Code had no application because S‑M was not in an employment relationship with S. The Tribunal held that it had jurisdiction to deal with the complaint and, accordingly, it denied S’s application under s. 27(1)(a) of the Code. The British Columbia Supreme Court dismissed S’s application for judicial review, but the Court of Appeal allowed S’s appeal and found that the Tribunal erred in law by concluding that it had jurisdiction over the complaint."
The S.C.C. (6:3) allowed the appeal.
Justice Rowe wrote as follows (at paras. 2-3, 28-29, 53, 56, 59, 69):
"At issue, then, is the question of whether discrimination “regarding employment” can ever be perpetrated by someone other than the complainant’s employer or superior in the workplace. To be clear, 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”.
I conclude that it was. 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 Mr. Sheikhzadeh‑Mashgoul’s employer or superior in the workplace.
The standard of review is correctness by virtue of s. 59 of the Administrative Tribunals Act. As this Court stated in Dunsmuir v. New Brunswick, 2008 SCC 9,  1 S.C.R. 190, at para. 50, “[w]hen applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question”. Accordingly, it is necessary to conduct our own analysis as to whether the Tribunal erred in its interpretation of s. 13(1)(b).
I note at the outset that this appeal calls for an exercise in statutory interpretation. The question before this Court is whether the words of s. 13(1)(b) of the Code can encompass discrimination only by an employer or a superior in the workplace. While we disagree in the result, the Chief Justice and I agree that this question requires an interpretation of the words “regarding employment”. For this reason, I respectfully differ from Justice Abella when she suggests that our analysis need not be rooted in “the particular words of British Columbia’s Code” (para. 73). While human rights jurisprudence provides significant guidance regarding the scope of “discrimination” generally, our starting point remains the words adopted by the British Columbia Legislature when defining the scope of discrimination “regarding employment” specifically.
A nuanced understanding of discrimination underpins the conclusion that one of the purposes of s. 13(1)(b) is to protect employees from the indignity of discriminatory conduct in the workplace. Admittedly, decisions relating to hiring, promotion, discipline, and termination — should they be based on a protected characteristic — are all obvious means by which those with formal authority can discriminate against employees. But it would be superficial to conclude that employers and other superiors are the only ones who can discriminate “regarding employment”. While discrimination by one’s employer is particularly insidious for the reasons identified by the Court of Appeal — in that it exploits an economic power imbalance — other forms of conduct can amount to discrimination “regarding employment” in the absence of such economic power.
In my view, while the person in control of the complainant’s employment may be primarily responsible for ensuring a discrimination-free workplace — a responsibility that is recognized in s. 44(2) of the Code — it does not follow that only a person who is in a relationship of control and dependence with the complainant is responsible for achieving the aims of the Code. Rather, the aspirational purposes of the Code require that individual perpetrators of discrimination be held accountable for their actions. This means that, in addition to bringing a claim against their employer, the complainant may also bring a claim against the individual perpetrator. The existence of this additional claim is especially relevant when the discriminatory conduct of a co-worker persists despite the employer having taken all possible steps to stop it.
In the end, a relational approach leaves complainants with access to too few remedies and narrows the range of actors who can be held accountable for their conduct. The unfortunate consequence of this is that individual perpetrators like Mr. Schrenk may be immunized from liability before the Tribunal simply because they do not share a common employer with the victim of their harassment. The contextual approach I propose, by contrast, gives employees greater scope to obtain remedies before the Tribunal. This aligns with the remedial purposes of the Code. Insofar as both the relational and the contextual interpretations of “regarding employment” are plausible, the interpretive approach set out in our jurisprudence relative to human rights laws favours the more generous reading.
Applying this contextual approach to the present case, I find that the alleged conduct by Mr. Schrenk would come within the ambit of s. 13(1)(b). As the foreman of the worksite, Mr. Schrenk was an integral and unavoidable part of Mr. Sheikhzadeh-Mashgoul’s work environment. By denigrating Mr. Sheikhzadeh-Mashgoul on the basis of religion, place of origin, and sexual orientation, his discriminatory behaviour had a detrimental impact on the workplace because it forced Mr. Sheikhzadeh-Mashgoul to contend with repeated affronts to his dignity. This conduct amounted to discrimination regarding employment: it was perpetrated against an employee by someone integral to his employment context. Mr. Sheikhzadeh-Mashgoul’s complaint was consequently within the jurisdiction of the Tribunal pursuant to s. 13(1)(b) of the Code."
Note: The summary and body are drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.