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Schrenk v British Columbia
Many people believe that the Ontario’s Human Rights Code protects all employees from discrimination and harassment in the course of their employment, but in a recent decision coming from the British Columbia Court of Appeal, we learn that not all workplace discrimination is within the jurisdiction of the Human Rights Tribunal.
The recent decision in Schrenk v. British Columbia (Human Rights Tribunal) 2016 BCCA 146 (“Schrenk”) is sets out the jurisdiction of the Human Rights Tribunal in regards to harassment and discrimination in the workplace.
Mohammadreza Sheikhzadeh-Mashgoul (the complainant) and Schrenk were working on a road improvement project together, but worked for different companies. The complainant was the site representative of a consulting engineering firm serving as the contract administrator on the project and Schrenk was the site foreman. For all intents and purposes, the complainant was the supervisor of Schrenk.
Throughout the project, Schrenk would make highly derogatory comments regarding the complainant’s sexual orientation, place of birth and religion and followed those up with emails to the same effect. The complainant brought a claim against Schrenk at the British Columbia’s Human Rights Tribunal as well as Clemas, Schrenk’s employer, but discontinued this claim shortly thereafter.
The British Columbia Human Rights Tribunal found that this incident did fall under their jurisdiction despite the lack of an employment relationship between the complainant and Schrenk. In their analysis, the Tribunal asserted that:
(54) The fact that Mr. Sheikhzadeh-Mashgoul, in his job relating to quality control, had significant influence over the way Clemas and Mr. Schrenk performed their work, does not in any way diminish the Tribunal’s jurisdiction over a complaint that an individual was negatively discriminated against in the course of his employment on the basis of religion, place of origin and sexual orientation.
Court of Appeal Findings
The British Columbia Court of Appeal found that the Human Rights Tribunal erred in finding that this incident fell within their jurisdiction. Schrenk argued that his conduct could not amount to discrimination under the Code, as he had no authority to impose the conduct on the complainant as a condition of his employment. The Court of Appeal agreed. In order for the complaint to be within the jurisdiction of the Human Rights Tribunal, the discrimination would have to have been discrimination regarding employment. In the Schrenk case, it could not have been said to have been regarding employment because Shrenk had no authority over the complainant and therefore could not negatively affect the complainant in regards to his ability to support himself economically. The Human Rights Code could not be understood to have granted the Tribunal jurisdiction to regulate all discriminatory burdens imposed on people regardless of the ability of the perpetrator to impose such burdens on the complainant’s economic life.
According to the Court of Appeal:
(44) (The Human Rights Tribunal) does not have jurisdiction to address a complaint made against one who is rude, insulting or insufferable but who is not in a position to force the complainant to endure that conduct as a condition of his employment.
The Court of Appeal quashed the decision of the Tribunal and dismissed the complaint against Schrenk.
As an employee or supervisor you absolutely have protections from harassment in the workplace, but based on circumstances, the remedy may not be against the perpetrator of the discrimination if the wrongdoer has no authority to impose employment discrimination as a condition of employment . In the Schrenk case, the person being harassed was the supervisor; therefore, his remedy in this situation was to file a complaint with the employer of the wrongdoer, which he did. When that employer took the necessary steps to correct the situation, i.e. firing Schrenk, they fulfilled their obligation to the harassed individual. Had the employer taken no action and condoned the behaviour of Schrenk, the supervisor may then make a complaint against the employer to the Human Rights Tribunal.
As in Ontario, every employee has the right to be free from harassment in the workplace by the employer or an agent of the employer under the protected grounds, which includes, among other things, sexual orientation, place of birth and religion. Although the complainant was discriminated against based on protected grounds, the harassment did not originate from a position of power, nor was it condoned by the employer, and therefore has no place in the Human Rights Tribunal.
In a situation where you are being discriminated against in the workplace but it is not “regarding employment”, as in the Schrenk case, you may still have a course of action that you should pursue. The first thing you should always do is tell your employer or manager about what is occurring or has occurred. By informing your employer, you are shifting the onus onto them to take action against the perpetrator and fix the problem. Should the employer not take the necessary steps to stop the harassment, you may then have a complaint against the employer to the Human Rights Tribunal for condoning their actions. In that case you must make sure to contact an experienced employment lawyer right away.