Supreme Court Of Canada Confirms Expansive Protections Against Discrimination Regarding Employment

In a recent decision of particular importance to employers in British Columbia, the Supreme Court of Canada (the "SCC") has upheld a decision of the British Columbia Human Rights Tribunal (the "Tribunal") that protection under the British Columbia Human Rights Code (the "Code") from discrimination "regarding employment" can extend to the actions or conduct of a person other than the complainant's employer or superior in the workplace.

Background

In BC Human Rights Tribunal v Schrenk1, the complainant, Mr. Sheikhzadeh-Mashgoul was employed as a civil engineer for Omega and Associates Engineering Ltd., an engineering firm engaged by the Municipality of Delta, to supervise a road improvement project. As a civil engineer, the complainant was responsible for supervising work performed by Clemas Construction Ltd. ("Clemas"), the construction contractor hired by the Municipality for the project.

Mr. Schrenk was employed by Clemas as its site foreman and superintendent on the project. Over a period of time, Mr. Schrenk engaged in a course of serious discriminatory conduct against the complainant. This conduct included making homophobic comments as well as other comments intended to denigrate the complainant's Muslim background, including "you are not going to blow us up with a suicide bomb, are you" and "go back to your mosque where you came from". After this course of discriminatory conduct became known to Omega and to Clemas, Mr. Schrenk was initially removed from performing work on the project and then was subsequently terminated by Clemas.

Tribunal Decision

The complainant filed a complaint with the Tribunal alleging that he had been discriminated against by Mr. Schrenk and Clemas contrary to the provisions of Section 13 of the Code. In response, Mr. Schrenk and Clemas applied to dismiss the complaint arguing the Code did not apply because no employment relationship existed between the complainant and Mr. Schrenk.

The Tribunal held that it had jurisdiction to deal with the complaint and concluded that the protection provided under the Code against discrimination "regarding employment" was not limited to protecting employees from the actions or conduct of their own employers or supervisors in the workplace.

Lower Court Decisions

The BC Supreme Court dismissed Mr. Schrenk's application for judicial review. On appeal to the BC Court of Appeal, the Court of Appeal allowed the appeal and held that the Tribunal erred in concluding that it had...