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DISCRIMINATION - Context - Workplace discrimination

Friday, December 15, 2017 @ 12:56 PM  


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Appeal by the British Columbia Human Rights Tribunal (Tribunal) from a judgment of the British Columbia Court of Appeal setting aside the judgment that affirmed a decision of the Tribunal concluding that it had jurisdiction to deal with Sheikhzadeh-Mashgoul’s complaint. Sheikhzadeh-Mashgoul filed a complaint with the Tribunal, against the respondent, Schrenk, alleging employment discrimination based on religion, place of origin, and sexual orientation. Schrenk responded with an application to dismiss under s. 27(1)(a) of the British Columbia Human Rights Code (Code), in which he argued that the alleged conduct was not discrimination “regarding employment” and was consequently beyond the jurisdiction of the Tribunal. The crux of Schrenk’s argument was that because he was not in a position of economic authority over Sheikhzadeh-Mashgoul and because he was neither his employer nor his workplace superior, his conduct could not be considered discrimination “regarding employment” within the meaning of the Code. Sheikhzadeh-Mashgoul was a civil engineer working for Omega and Associates Engineering Ltd. (Omega) who supervised work performed by the primary construction contractor hired to carry out a road improvement project, Clemas Contracting Ltd. (Clemas). Clemas’ site foreman and superintendent, Schrenk, allegedly harassed Sheikhzadeh-Mashgoul, and his discriminatory behaviour led to his removal from the worksite after complaints were made to Omega and Clemas. Schrenk was eventually terminated by Clemas after he continued to send derogatory emails to Sheikhzadeh-Mashgoul. Sheikhzadeh-Mashgoul filed a complaint with the Tribunal against Schrenk and Clemas, alleging employment discrimination. At issue, was the question of whether discrimination “regarding employment” could ever be perpetrated by someone other than the complainant’s employer or superior in the workplace. The Tribunal held that it had jurisdiction to deal with the complaint. The Supreme Court of British Columbia concluded that the Tribunal had not erred in its interpretation and application of s. 13(1)(b) of the Code. However, the British Columbia Court of Appeal allowed Schrenk’s appeal. Applying the standard of correctness, it found the Tribunal erred in law by concluding that it had jurisdiction to deal with the complaint. The Tribunal appealed the Court of Appeal’s decision.

HELD: Appeal allowed. The language of the Code provided the first indicator that the Court had to adopt the broad interpretation of s. 13(1)(b) favoured by the Tribunal. Section 13(1)(b) did not restrict who could perpetrate discrimination but defined who could suffer employment discrimination. In this way, it prohibited discriminatory conduct that targeted employees so long as that conduct had a sufficient nexus to the employment context. The requirement to read the legislative text “harmoniously with the scheme of the Act” reinforced the broad interpretation of s. 13(1)(b). Considering the patterns of expression in the Code further reinforced the interpretation of s. 13(1)(b) as applying beyond the confines of employer-employee relationships. The modern principle of interpretation required that courts approach statutory language in the manner that best reflected the underlying aims of the statute. While the person in control of the complainant’s employment might be primarily responsible for ensuring a discrimination-free workplace, it did not follow that only a person who was in a relationship of control and dependence with the complainant was responsible for achieving the aims of the Code. Insofar as both the relational and the contextual interpretations of “regarding employment” were plausible, the interpretive approach set out in the jurisprudence relative to human rights laws favoured the more generous reading. A contextual interpretation furthered the purposes of the Code by recognizing how employee vulnerability stemmed not only from economic subordination to their employers but also from being a captive audience to other perpetrators of discrimination, such as a harassing co-worker. By denigrating Sheikhzadeh-Mashgoul on the basis of religion, place of origin, and sexual orientation, Schrenk’s discriminatory behaviour had a detrimental impact on the workplace because it forced Sheikhzadeh-Mashgoul to contend with repeated affronts to his dignity. Applying this contextual approach to the present case, Schrenk’s alleged conduct came within the ambit of s. 13(1)(b). In consequence, the Tribunal did not err in concluding that Schrenk’s conduct was covered by s. 13(1)(b) despite the fact that he was not Sheikhzadeh Mashgoul’s employer or superior in the workplace, and that it therefore had jurisdiction of Sheikhzadeh Mashgoul’s complaint.

British Columbia Human Rights Tribunal v. Schrenk, [2017] S.C.J. No. 62, Supreme Court of Canada, B. McLachlin C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, R. Wagner, C. Gascon, S. Côté, R. Brown and M. Rowe JJ., December 15, 2017. Digest No. TLD-December112017012SCC