Third Parties and Discrimination in the Workplace

Written on behalf of Peter McSherry

The Supreme Court of Canada will be hearing an appeal of Schrenk v. British Columbia (Human Rights Tribunal) and determining whether the B.C Human Rights Tribunal had jurisdiction to hear a complaint about discrimination in employment involving individuals from different workplaces/separate employers.

The Background

The complainant, Mohammadreza Sheikhzadeh-Mashgoul (Mashgoul) was a civil engineer working for a company that was responsible for supervising a municipal road improvement project. Part of Mashgoul’s responsiblities included supervising workers on the site, including the site foreman, Edward Schrenk (Schrenk), who worked for a separate company.  Mashgoul claimed that Schrenk made derogatory comments about Mashgoul’s religion, place of birth, and sexual orientation while on the worksite.

The Tribunal originally found that they had jurisdiction to hear the complaint. The issue before them was whether the prohibited conduct of any person adversely affected an employee during the course of their employment. Schrenk’s behaviour had adversely affected Mashgoul’s employment, and his misconduct had occurred at their shared workplace. This placed Mashgoul’s complaint within their purview.

Schrenk appealed to the BC Supreme Court, which upheld the Tribunal’s decision. He further appealed to the BC Court of Appeal.

The BC Court of Appeal

On appeal, Schrenk never acknowledged that he had made any of the alleged statements. He argued instead that, whether or not the statements had been made, they could not constitute discrimination in employment because there was a limited nexus (i.e- connection) between Schrenk’s conduct and an employment relationship.

Schrenk’s position was that the original trial judge had erred and misinterpreted the Code by concluding that all that had been required to establish the Tribunal’s jurisdiction was that Mashgoul had been negatively effected in the course of his employment by discrimination on prohibited grounds.

He argued that not every act by every person in a workplace that caused another person to feel demeaned on the basis of prohibited grounds could be brought to the Tribunal. The court should have focused on whether the relationship between Mashgoul and Schrenk was the type that could be regulated as an “employment relationship” under the Code. Schrenk argued that it was not possible for a supervisor (Mashgoul), who was the person who had control over the work of a subordinate (Schrenk) to complain that the subordinate had discriminated against him regarding employment.

In response, the Tribunal argued that it had the requisite jurisdiction in this case given its very specific circumstances. Here, the offensive behaviour of one employee on a worksite negatively affected the employment of another employee (albeit of a different employer) on the same worksite. One of the fundamental purposes of the Code is to end such harassment and remove discriminatory conduct from the workplace.

The BC Court of Appeal ultimately found that the Tribunal had no jurisdiction over the complaint because “the elements of control and dependency are absent from the relationship” (i.e-  Schrenk had no effect on Mashgoul’s employment).

The Court stated:

Not all insults inflicted upon employees, even in the course of their employment, amount to discrimination regarding employment. Such insults can amount to discrimination regarding employment if  the wrongdoer is clothed by the employer with such authority that he or she is able to impose that unwelcome conduct on the complainant as a condition of employment, or if the wrongdoing is tolerated by the employer. If the wrongdoer has no such power or authority, the Tribunal has jurisdiction to consider whether the complainant’s employer played some role in allowing the conduct to occur or continue, in which case the insult is endured as a consequence of employment. But even then, the Tribunal has no jurisdiction over the wrongdoer.

…the Tribunal certainly has jurisdiction in relation to an allegation that a person has forced the complainant, expressly or otherwise, to endure harassment at work. It had jurisdiction to address the response of the complainant’s employer to his complaint. It does not, however, 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.

What Does this Mean?

Although this is a case involving the human rights regime in British Columbia, it will set an important precedent for workplaces across Canada and will be worth following. Regardless of the ultimate outcome, this case will have important implications on workplace discrimination claims, particularly in a situation involving employees who work for separate companies but come into contact with one another (such as situations involving third party contractors, or similar). It has already been well-established in caselaw that employees can bring discrimination claims against parties in the workplace other than their employers. However, this case may create some limits around who those other parties can be.

We will follow developments in this case, and blog about updates as they become available.

To find out more about your rights at work, contact employment lawyer Peter McSherry online or at 519-821-5465.