SCC Confirms that Human Rights Code Applies to Employees Who Do Not Share the Same Employer

By Colin Edstrom
Categories: Blog, Employment Law

The British Columbia Human Rights Code prohibits discrimination in employment. Historically, the jurisdiction to determine discrimination was narrow. It involved discriminatory acts committed by one employee or supervisor against another employee. However, the Supreme Court of Canada recently broadened the scope of the Code by finding that it applies to employees employed by different employers – not just persons in a traditional employment relationship.

In British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 (“Schrenk”), the complainant was a Muslim who worked as a civil engineer for Omega and Associates Engineering Ltd. (“Omega”). Omega contracted Clemas Construction Ltd. (“Clemas”) to perform construction services on a road improvement project. Omega retained certain supervisory powers over the employees of Clemas who worked on the project. Mr. Schrenk, an employee of Clemas, was the site foreman on the project. He made frequent derogatory remarks about the complainant’s religion, place of origin and sexual orientation.

Despite working for different employers, the complainant filed a human rights complaint alleging discrimination with respect to employment by Mr. Schrenk. He also alleged that the conduct was permitted or tolerated by Clemas. Mr. Schrenk and Clemas applied to dismiss the complaint on the basis that they could not have discriminated against Mr. Schrenk in regards to his employment because he was not an employee of Clemas. The British Columbia Human Rights Tribunal disagreed finding that the purposes of the Code supported protecting persons who occupy the same workspace but are otherwise not in a formal employment relationship. Notably, Mr. Schrenk – and not his employer – applied for judicial review of the Tribunal’s decision. The decision was overturned by the British Columbia Court of Appeal before proceeding to the Supreme Court of Canada.

The Supreme Court of Canada, in a split decision, found that discrimination in employment may include discriminatory acts by co-workers who have a different employer. Following an extensive review of the legislative history of the Code, the majority of the Court held that applying a broader approach best reflects the underlying aims of the statute as it gives employees a greater scope to obtain remedies for discrimination. In this particular case, Mr. Schrenk was the foreman of the worksite. He was not the complainant’s superior but was an unavoidable part of the complainant’s work environment. His actions had a detrimental impact on the complainant’s worklife. As such, the Supreme Court of Canada held that Mr. Schrenk’s conduct amounted to discrimination regarding employment. The discriminatory acts were perpetrated against an employee by someone integral to his employment context.

The decision in Schrenk will have far reaching implications across the country. Clemas did not appeal the decision of the Human Rights Tribunal which meant that the issue before the Supreme Court of Canada involved the conduct of an individual employee. That being said, the Court’s decision will likely pave the way for findings of vicarious liability against third-party companies like Clemas. Employers may be subject to the Code despite the absence of an employment relationship. This decision will be of particular interest to persons in the construction industry, any employer who utilizes the services of contractors and persons working on multi-employer worksites.