Top court's ruling on B.C. case will clarify jurisdiction of human rights tribunals when discrimination comes from a non-employer
Can a worker be discriminated against in the workplace by someone who works with a different company and in a subordinate role? This is the question the Supreme Court of Canada was faced with this past spring, as the court seeks to clarify the boundaries of the “workplace” when it comes to human rights law. The court’s eventual decision could expand human rights tribunals’ jurisdiction when it comes to workplace harassment.
The case before Canada's top court began in 2014. Edward Schrenk was employed by Clemas Contracting, a company providing general contractor work for construction sites in Langley, B.C., and was supervised by Mohammadreza Sheikhzadeh-Mashgoul, who was on site as a representative of a separate consulting engineering firm. Over a period of time Schrenk made a number of derogatory statements to Sheikhzadeh-Mashgoul and others about the latter’s place of birth, religion, and sexual orientation. Schrenk’s employment was eventually terminated in March of 2014, after which Sheikhzadeh-Mashgoul filed a complaint of discrimination with the B.C. Human Rights Tribunal.
Sheikhzadeh-Mashgoul alleged that Schrenk had engaged in “unacceptable discriminatory and insulting behaviour targeting (Sheikhzadeh-Mashgoul’s) country of origin, religion, and sexual orientation between September 2013 and March 2014,” and that his behaviour was permitted by Schrenk’s employer. Schrenk did not acknowledge that he had made all of the statements alleged by Sheikhzadeh-Mashgoul, but argued that even if the statements had been made, they could not constitute discrimination “in employment,” as neither Schrenk nor his employer were in fact Sheikhzadeh-Mashgoul’s employer.
Question over discrimination regarding employment
The B.C. Human Rights Code prohibits individuals from discriminating against a person “regarding employment or any term or condition of employment” because of his protected characteristic. The heart of Schrenk’s argument before the tribunal was that his comments had no connection to Sheikhzadeh-Mashgoul’s employment, because Schrenk and Sheikhzadeh-Mashgoul were not in an employment relationship. If anything, Schrenk argued, Sheikhzadeh-Mashgoul was in a position of power over Schrenk as he was his acting supervisor.
On those bases, Schrenk asked that the tribunal dismiss Sheikhzadeh-Mashgoul’s complaint, which the tribunal denied. The tribunal did not give weight to Schrenk’s argument, finding that even though Sheikhzadeh-Mashgoul had “significant influence” over the way Schrenk performed his work, this did not, “in any way diminish the tribunal’s jurisdiction over a complaint that an individual was negatively discriminated against in the course of his employment on the basis of religion, place of origin and sexual orientation.” The tribunal’s decision was upheld by the B.C. Supreme Court.
At the B.C. Court of Appeal, however, the decision was overturned. The Court of Appeal found that the tribunal had no jurisdiction over Sheikhzadeh-Mashgoul’s complaint because the conduct he cited was not discrimination regarding his “employment.”
“Not all insults inflicted upon employees, even in the course of their employment, amount to discrimination regarding employment. Such insults can amount to discrimination regarding employment if the wrongdoer is clothed by the employer with such authority that he or she is able to impose that unwelcome conduct on the complainant as a condition of employment, or if the wrongdoing is tolerated by the employer. If the wrongdoer has no such power or authority, the tribunal has jurisdiction to consider whether the complainant’s employer played some role in allowing the conduct to occur or continue, in which case the insult is endured as a consequence of employment. But even then, the tribunal has no jurisdiction over the wrongdoer,” said the Court of Appeal.
The appeal court’s decision differentiated between individuals who are in a position to force the complainant to endure discriminating conduct as a condition of their employment, and individuals who aren’t in position to force the complainant to endure it as a condition of their employment. In the former situation, the tribunal has jurisdiction to hear complaints and issue remedies where appropriate. In the latter, the tribunal has no jurisdiction. Given that these two individuals employed by separate employers worked at the same worksite and the alleged harasser was the subordinate employee, this situation is different than two employees working for the same employer, especially if in that situation the alleged harasser is the superior.
The B.C. Court of Appeal issued an order dismissing Sheikhzadeh-Mashgoul’s complaint against Schrenk. The tribunal appealed the decision to the Supreme Court, which heard the appeal this past March.
Supreme Court's decision will have ramifications
When the Supreme Court issues its decision, it could have significant ramifications for individuals experiencing discrimination in the workplace. As it stands, the B.C. Court of Appeal has clarified that individuals are only protected under the B.C. Human Rights Code from workplace discrimination insofar as they are forced to endure it as a condition of their employment. Human rights tribunals cannot remedy comments or actions that are otherwise unwelcome or offensive, but are not administered as a condition of employment. If the Supreme Court of Canada upholds the tribunal’s original decision, the tribunal’s jurisdiction to handle workplace discrimination complaints will expand significantly.
For more information see:
•Sheikhzadeh-Mashgoul v. Clemas Contracting, 2015 CarswellBC 190 (B.C. Human Rights Trib.).
•Schrenk v. British Columbia (Human Rights Tribunal), 2015 CarswellBC 2155 (B.C. S.C.).
•Schrenk v. British Columbia (Human Rights Tribunal), 2016 CarswellBC 869 (B.C. C.A.).
Victoria J. Petrenko and Preston I.A.D. Parsons are lawyers practicing employment law with Overholt Law in Vancouver. Victoria can be reached at [email protected] and Preston can be reached at [email protected]. Either can be reached at Overholt Law at (778)-653-7561.
