Protection From Discrimination in Employment – To Infinity and Beyond
At the end of last year, the Supreme Court of Canada, in the highly anticipated decision of British Columbia Human Rights Tribunal v Schrenk, 2017 SCC 62 (“Shrenk”), addressed the following important issue: How far does protection from discrimination in the area of employment extend?
The Decision in Schrenk
The background to the Schrenk decision is as follows. Mr. Sheikhzadeh-Mashgoul worked for Omega and Associates Engineering Ltd. as a civil engineer on a road improvement project. Mr. Schrenk worked for Clemas Constructions Ltd. as a site foreman and superintendent on the same project.
Mr. Schrenk made racist and homophobic statements to Mr. Sheikhzadeh-Mashgoul and Mr. Sheikhzadeh-Mashgoul eventually filed a complaint with the British Columbia Human Rights Tribunal against Mr. Schrenk. Mr. Sheikhzadeh-Mashgoul alleged that Mr. Schrenk discriminated against him on the basis of religion, place of origin and sexual orientation in the area of employment. Mr. Schrenk applied to have the complaint dismissed on the basis that he was not in an employment relationship with Mr. Sheikhzadeh-Mashgoul and so the Tribunal did not have jurisdiction over the complaint. The Tribunal dismissed this application, finding that it had jurisdiction over the complaint. The British Columbia Supreme Court then dismissed Mr. Schrenk’s application for judicial review. However, the British Columbia Court of Appeal allowed Mr. Schrenk’s appeal, finding that the Tribunal did not have jurisdiction over the complaint.
In ultimately agreeing with the Tribunal and overturning the British Columbia Court of Appeal, the Supreme Court of Canada held that the Mr. Sheikhzadeh-Mashgoul and Mr. Schrenk were in an employment relationship for the purposes of British Columbia’s Human Rights Code.
A majority of the Court (five of the judges), determined that the Code doesn’t just protect employees from discrimination at the hands of their superiors, but protects employees from discrimination whenever the discrimination has a “sufficient nexus” with the employment context.
The majority suggested that, to determine if such a nexus exists, three non-exhaustive factors should be considered:
- whether the respondent was integral to the complainant’s workplace;
- whether the impugned conduct occurred in the complainant’s workplace; and
- whether the complainant’s work performance or work environment was negatively affected.
In reaching its decision, the majority focused heavily on the actual text of the provision in the Code which provides that “A person must not … discriminate against a person regarding employment”.
So What Does This Mean?
The effect of this decision, at least in British Columbia, is clear: protection from discrimination in the area of employment extends beyond “I work for you”. It also extends to “I work for a different employer, but on the same project as you”. It may even extend to:
- “you’re a main supplier”; or
- “you work in the building next door”.
The effect of this decision in Alberta is somewhat less clear. This is because the majority’s reasoning focused heavily on the actual text of the provision in the Code. The text of the equivalent provision in the Alberta Human Rights Act is different: “No employer shall … discriminate against any person with regard to employment”. The fact that Alberta’s Act uses the word “employer” where British Columbia’s Code uses the word “person” may limit the application of this decision in Alberta.
Adding to the uncertainty, the Alberta Court of Appeal has traditionally taken a fairly narrow approach here. In Lockerbie & Hole Industrial Inc v Alberta (Human Rights and Citizenship Commission, Director), 2011 ABCA 3, the Alberta Court of Appeal declined to find that Mr. Luka was in an employment relationship with Syncrude, notwithstanding that Mr. Luka was an employee of one of Syncrude’s contractors, Lockerbie & Hole Industrial Inc., and was working on a site owned and controlled by Syncrude.
However, it is possible that Schrenk may lead to a more expansive and far-reaching interpretation of protection from discrimination in the area of employment in our province. This is partly due to the fact that one of the judges in Schrenk, who agreed with the majority in the result but wrote her own reasons, based her decision not on the “particular words” of the provision in the Code, but on “well-settled human rights principles”. She highlighted that all individuals have the right to be protected from discrimination in the workplace, regardless of technical lines of authority. She also emphasized that this less rigid approach was significantly more responsive to the realities of modern workplaces.
The Bottom Line
It’s important for employers to recognize that they may now bear liability in relation to individuals with whom they don’t have a typical employment relationship. Likewise, employers need to consider how their employees treat, and are treated by, any other individual that may play a role in the workplace. Field Law’s Labour and Employment lawyers can assist you and your organization in understanding your obligations as an employer under the Alberta Human Rights Act and, where necessary, making or responding to a complaint of discrimination in the area of employment.