The Supreme Court of Canada issued its much-anticipated decision on the scope of human rights legislation today, finding that the British Columbia Human Rights Code is not limitless in its scope, and instead created a new contextual test to determine whether alleged discriminatory conduct is conduct within the scope of the Code. On March 28, 2017, Mark D. Andrews, David G. Wong, and Stephanie D. Gutierrez of Fasken Martineau DuMoulin LLP’s Vancouver office, appeared before the Supreme Court of Canada, acting on behalf of the individual respondent Edward Schrenk, on an appeal by the B.C. Human Rights Tribunal.
The complainant and Mr. Schrenk were working on a construction project for different employers. The complainant alleged that Mr. Schrenk made three derogatory statements relating to the complainant while on the worksite: one at the outset that the complainant did not take seriously, the second to the complainant that was addressed, and the third to a third-party who told the complainant. The complainant reported that comment to his employer and Mr. Schrenk was removed from the worksite. Months later, Mr. Schrenk sent the complainant two emails with inappropriate language after which Mr. Schrenk’s employment was terminated. The complainant filed a human rights complaint against three parties: the owner of the construction project, the employer of Mr. Schrenk, and Mr. Schrenk himself.
The Tribunal denied an application to dismiss the complaint on the basis that it did not have jurisdiction relating to the complaint against Mr. Schrenk. That decision was upheld by the Supreme Court of B.C, and overturned by the B.C. Court of Appeal. The Tribunal applied for and was granted leave to appeal to the Supreme Court of Canada.
Before the Supreme Court of Canada, the Tribunal argued that its jurisdiction to hear complaints is sufficiently broad to include any interaction that takes place within the sphere of a person’s employment – including passersby, shoppers and anyone encountering people at work in their day to day lives – falls within the scope of the BC Human Rights Code.
On behalf of Mr. Schrenk, we argued that human rights legislation is thoughtfully crafted to create a system whereby the party in a relationship of control and dependence with the complainant – for example an employer – has control and responsibility for ensuring the complainant does not suffer discrimination in their work. The Tribunal has a role where that party is the discriminating party or fails to adequately address the alleged discriminatory harassment in the workplace; it should not and does not have the jurisdiction to weigh in on every allegation of discriminatory harassment that someone says occurs while they are at work. In this way, the legislation creates a focused and efficient system to allow those in positions of control to address issues while still ensuring individuals do not suffer discriminatory impediments to their full and free participation in the workplace.
While the majority of the Supreme Court allowed the appeal, it found some middle ground and created a new “contextual” test that set some limits on what constitutes discrimination regarding employment under the Code. It held that when determining whether allegedly discriminatory conduct has a sufficient nexus with the employment context, the Tribunal must conduct a contextual analysis that considers all of the relevant circumstances, including whether the respondent was integral to the claimant’s workplace, whether the impugned conduct occurred in the claimant’s workplace, and whether the claimant’s work performance or work environment was negatively affected. While it is not clear how this new test will be applied, it appears that individual members of the public who encounter workers in the course of their everyday activities should not be subject to human rights complaints under this test.
Notably, Chief Justice McLachlin, on behalf of herself, Justice Cote and Justice Brown, wrote a strong dissent, holding that the workplace discrimination prohibition in the Code applies only to employer-employee or similar relationships, and allows claims against persons responsible for ensuring workplaces are free from discrimination.
By David Wong and Stephanie Gutierrez, Fasken Martineau
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