Who, me? Could be: SCC extends protections regarding employment under the BC Human Rights Code

In a landmark case, the Supreme Court of Canada has extended the protection it offers to employees from discrimination in the workplace to encompass discrimination perpetrated by an individual with a different employer: British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62.

This case answers in the affirmative the question of whether the BC Human Rights Code applies to discrimination perpetrated by someone other than the complainant's employer or superior. The decision will have significant implications for employers and all those involved in the workplace.

The case involved two individuals who worked for two different employers at the same worksite. Mr. Schrenk was employed by a contracting company (Clemas) as the site foreman. Mr. Sheikhzadeh-Mashgoul was a civil engineer working for another consulting company and was the site administrator in charge of supervising the work done by Clemas. Schrenk repeatedly made a number of highly derogatory statements to Sheikhzadeh-Mashgoul and others about the latter's sexual orientation, religion, and place of birth. Subsequently, Sheikhzadeh-Mashgoul filed a complaint of discrimination with the British Columbia Human Rights Tribunal, alleging that Clemas and Schrenk had discriminated against him under section 13 of the Human Rights Code.

Clemas and Mr. Schrenk filed an application to dismiss the complaint, arguing that the Tribunal lacked jurisdiction over the matter as there was no relationship of employment between Sheikhzadeh-Mashgoul and Clemas/Schrenk. Schrenk was neither Sheikhzadeh-Mashgoul's employer nor his superior in the workplace. The Tribunal rejected the application to dismiss. Mr. Schrenk's petition for judicial review was dismissed by the BC Supreme Court. Mr. Schrenk was successful in his appeal to the British Columbia Court of Appeal, however, which held that the Tribunal's jurisdiction was limited to addressing complaints against those who had the power to inflict discriminatory conduct as a condition of employment. Since Schrenk was not in a position to force Sheikhzadeh-Mashgoul to endure the discriminatory conduct as a condition of the latter's employment, the BCCA held that the Tribunal did not have jurisdiction over the complaint.

The majority of the SCC broadly applied the protections under the Code, saying they are not limited to protecting employees solely from discriminatory harassment by their superiors in the workplace. Rather, the majority held that section...