Feb 2, 2018

Human Rights Laws apply to non-traditional employment relationships

British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 (CanLII)

Background:

In the recent decision of British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, the Supreme Court of Canada dealt with a case involving a civil engineer who was subjected to repeated acts of discrimination on the basis of religion, place of origin, and sexual orientation by a contractor. The contractor then continued making derogatory comments to the complainant via e-mail. The employer of the contractor eventually terminated his employment after the emails were forwarded to them by the complainant and the complainant’s employer. The complainant then filed a human rights complaint with the B.C. Human Rights Tribunal against the contractor and his employer alleging that he was discriminated “regarding employment” contrary to s.13(b) of the Human Rights Code.

Issue:

The issue in this case was whether discrimination “regarding employment” can ever be perpetrated by someone other than the complainant’s employer or superior in the workplace.

Law:

The Supreme Court agreed that the B.C. Human Rights Code’s definition of “regarding employment” was broad enough to include co-workers and co-workers who did not share the same employer. As long as there is a sufficient nexus with the employment context, the B.C. Human Rights Code will apply. In determining whether there is a sufficient nexus, the Tribunal may consider the following factors (and can include other factors depending on the circumstances):

  • Whether the respondent was integral to the complainant’s workplace
  • Whether the conduct occurred in the complainant’s workplace
  • Whether the complainant’s work performance or work environment was negatively affected

In this case, as the foreman of the work-site, the Court found that the contractor was an integral and unavoidable part of the complainant’s work environment. By denigrating the complainant on the basis of religion, place of origin and sexual orientation, the discrimination had a detrimental impact on the workplace because it forced the complainant to contend with attacks to his dignity.

Impact of the Decision:

In Ontario, this decision will have a minimal impact on employees, since s. 5 of Ontario’s Human Rights Code already includes broad language that prohibits discrimination “with respect to employment”. The Human Rights Tribunal of Ontario has consistently held that discrimination “with respect to employment” is broad enough to include a wide range of workplace relationships, including sub-contractors and independent contractors (Shinozaki v. Hotlomi Spa, 2013 HRTO 1027, Garofalo v. Cavalier Hair Stylists Shop Inc., 2013 HRTO 170, Szabo v. Poley, 2007 HRTO 37; and Sutton v. Jarvis Ryan Associates, 2010 HRTO 2421).

However, in B.C. and other jurisdictions with similar language, this decision will provide additional protections to complainants who deal with discrimination in non-traditional employee/employer relationships and workplaces. Traditionally, if an employee was the subject of discrimination by a co-worker, the employee would file a complaint against the employer not the individual. Now, an employee can file a complaint directly against the individual as long as there is a sufficient nexus with employment.