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19 Hum. Rts. Dig. 1 (2018)

handle is hein.journals/hurtsdg19 and id is 1 raw text is: Iliun _i______n_ Ri _s Digest Vol. 19 No. 1 ry/February 2018 EMPLOYMENT - employment relationship between complainant and respondent - McCormick test - defini- tion of employment - INTERPRETATION OF STATUTES - legislative history and intent as aids to interpretation - definition of employment, person and regarding employment - presumption against redundancy - pre- sumption that legislative change is purposeful - plain meaning rule JURISDICTION - jurisdiction to hear complaint despite lack of employment relationship - APPEALS AND JUDI- CIAL REVIEW - appeal of judicial review - error of law in determining jurisdiction - HUMAN RIGHTS - nature and purpose of human rights legislation The Supreme Court of Canada, in a 6-3 decision, upheld the decision of the B.C. Human Rights Tribunal (CHRR Doc. 15-0017) that it had jurisdiction to decide a case where the perpetrator of the alleged discrimination worked for a different employer than the complainant. The issue in this case is the scope of the prohibition against discrimination regarding employment under s. 13 (1)(b) of the B.C. Human Rights Code. Mr. Schrenk, the respondent in this case, sought dismissal of a complaint against him on the grounds that he was not in a position of economic authority over the complainant, as he was neither his employer, nor his superior in the workplace. Schrenk contended that his con- duct, however, egregious, could not be considered discrimi- nation regarding employment. Edward Schrenk was a site foreman employed by Clemas Contracting Ltd. on a road improvement project in Delta in 2013-2014. The complainant, Mohammadreza Sheikhzadeh-Mashgoul (a.k.a. Mashgoul), a civil engineer, was working for a consulting engineering firm as the con- tract administrator on the project. While on the site, Mr. Schrenk made derogatory state- ments to Mr. Mashgoul and others about Mr. Mashgoul's place of birth, religion and sexual orientation. The state- ments were followed by derogatory emails sent directly to the complainant. Mr. Mashgoul filed a human rights complaint. Following complaints to Clemas made by Mr. Mashgoul's engineering firm, Mr. Schrenk's employment was termi- nated. Mr. Schrenk did not acknowledge that he made all of the statements complained of, but he testified that he suffered a traumatic brain injury and this has caused a loss of inhibition. He says, regardless of whether the statements were made, they do not constitute discrimi- nation in employment. Mr. Schrenk and Clemas sought to have Mr. Mashgoul's human rights complaint dismissed. The Tribunal found that it had jurisdiction and the complaint was not dis- missed. The B.C. Supreme Court upheld the Tribunal's decision (CHRR Doc. 15-3096). However, the B.C. Court of Appeal overturned this deci- sion. The Court of Appeal (84 C.H.R.R. D/40) found that there was no employment relationship over which the Tribunal had jurisdiction. The Court of Appeal ruled that the Tribunal can address an allegation that a person has forced a complainant to endure harassment at work. But it cannot address a complaint made against a person who is rude and insulting, but who is not in a position to force the complainant to endure that conduct as a condition of his employment. The B.C. Court of Appeal allowed the appeal, granted an order to quash the Tribunal's decision, and dismissed the complaint against Mr. Schrenk. The B.C. Human Rights Tribunal appealed that decision. In the Supreme Court of Canada, the majority found that the scope of s. 13(1)(b) is not limited to protecting em- ployees solely from discriminatory harassment by their superiors in the workplace. Rather, its protection extends to all employees who suffer discrimination that is suffi- ciently connected to their employment. This may include discrimination by co-workers, even when those co- workers have a different employer. Consequently, the majority ruled that the Tribunal did not err in concluding that Mr. Schrenk's conduct was covered by s. 13 of the Code, despite the fact that he was not Mr. Mashgoul's employer or superior. Section 13 (1)(b) of the B.C. Code stipulates that a person must not ... discriminate ... regarding employment or any term or condition of employment. Rowe J., writing for the majority of the Supreme Court found that the term regarding employment does not solely prohibit discrimi- nation within hierarchical workplace relationships. If this were the case, the words discriminate ... regarding em- ployment would essentially mean discrimination by em- ployers or workplace superiors. But s. 13 does not restrict who can perpetrate discrimination. Instead, it defines who can suffer employment discrimination. It prohibits conduct that targets employees so long as that conduct has a suffi- cient nexus to the employment context. The majority rejected the position taken by the minority, led by Chief Justice McLachlin, namely, that s. 13 only prohibits discrimination by employers or workplace supe- riors, because they are the only ones who have economic power over the employee. By contrast, the majority finds that economic power can be exercised by non-employers, such as regular customers in a restaurant, and that em- ployees can also be discriminated against by expressions of gender or racial dominance that do not have economic impact. CANADIAN HUMAN RIGHTS REPORTER 1-13 PUBLISHER OF CANADIAN HUMAN RIGHTS LAW

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