By Janice Rubin and Megan Forward

On March 28, 2017, the Supreme Court of Canada (the “Court”) heard arguments in British Columbia Human Rights Tribunal v. Edward Schrenk.¹ The case raises very important issues as to who is entitled to protections against harassment and discrimination in the workplace and in what workplace settings and employment-related relationships.  The Court will consider whether these protections are limited to those in a traditional employment relationship, where the alleged harasser is in a position of power and authority over the victim, or whether the concepts of harassment and discrimination are broad enough to cover other types of work-related relationships, where there may be no power imbalance per se, or the imbalance is something other than authority.²

The Court is charged with interpreting section 13 of the British Columbia Human Rights Code, (the “Code”) which states that:

13(1) A person must not

(a) Refuse to employ or refuse to continue to employ a person, or

(b) Discriminate against a person regarding employment or any term of condition of employment because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person. (our emphasis)

The Court will consider who is a “person” under the Code, and whether it can be someone other than a co-worker or a supervisor, and whether “regarding employment” is broad enough to cover a situation in which the parties are not employed by one employer.

The following is an overview of the facts, the arguments and why it all matters.

The Facts
At its heart, the case involves whether the British Columbia Human Rights Tribunal (the “Tribunal”) has jurisdiction to hear a complaint made by Mr. Sheikhzadeh-Mashgoul, an employee of Omega & Associates Civil and Standard Engineering (“Omega”), against Mr. Schrenk and his employer, Clemas Contracting Ltd. (“Clemas”).  Sheikhzadeh-Mashgoul and Schrenk were not in a formal employment relationship with each other, nor did one supervise the other.  Rather they were each employed by companies that had contracted with the B.C. municipality of Delta, to do the work on the construction site.  They did work closely together, however.  Sheikhzadeh-Mashgoul acted as Omega’s site representative and Schrenk worked as the foreman for the project.

Sheikhzadeh-Mashgoul identifies himself as a Muslim man. He immigrated to Canada from Iran in 2002.

Between September 2013 and January 2014, while on the construction site, it is alleged that Schrenk:

• Asked Sheikhzadeh-Mashgoul about his place of origin and religion, and said to him “You’re not going to blow us up with a suicide bomb are you?”

• Two months later, in the course of an argument with Sheikhzadeh-Mashgoul, Schrenk pushed him and yelled “Get the f***out of my site, I’m the superintendent you f***Muslim piece of shit”. When Sheikhzadeh-Mashgoul called the supervisor, Schrenk said “Are you going to call your gay friend?” and said that Sheikhzadeh-Mashgoul was “such a girl, keeps bitching and sending emails all day long”.

When these comments were brought to their attention, Omega and Delta asked Clemas to remove Schrenk from the work site, which it did, but he continued to do work on the project off-site.

Nevertheless, it is alleged that Schrenk continued to harass Sheikhzadeh-Mashgoul. He alleges that while leaving the site one day, Schrenk yelled and swore at him, and tried to block his way with his truck and that he yelled at him “go back to your mosque where you came from” as he walked way.

Sheikhzadeh-Mashgoul wrote to Delta and Clemas on behalf of Omega and asked that Schrenk be removed from the project immediately. Clemas complied, and moved Schrenk to other projects. Nevertheless, Schrenk’s behaviour towards Sheikhzadeh-Mashgoul allegedly continued.  He emailed Sheikhzadeh-Mashgoul and referred to his supervisor as his “man friend”. The next day, he sent a second email using the language “ho moe” and insinuated that Sheikhzadeh-Mashgoul was in a sexual relationship with a male contractor at the worksite. Schrenk’s employment was terminated shortly thereafter.

The Argument
Sheikhzadeh-Mashgoul filed a human rights complaint alleging discrimination by Clemas and its employee, Schrenk.

At the British Columbia Human Rights Tribunal (“the Tribunal”), the respondents argued that the matter should be dismissed because Sheikhzadeh-Mashgoul was not in an employment relationship with either respondent. The respondents argued that human rights protections vis-à-vis employment are in place to protect employees from discrimination by employers. That relationship did not exist here.  This position was rejected by the Tribunal and it concluded that by virtue of the language of the Code, and the nature of the relationship between the parties, it did have jurisdiction to consider the complaint.  On judicial review, the Supreme Court of British Columbia agreed.

The respondents appealed to the Court of Appeal. It concluded that the Tribunal “had engaged in inappropriate analysis in considering whether the discrimination occurred “in relation to employment”.”  It found that the Tribunal was too simplistic in interpreting “in relation to employment” and that it had incorrectly discounted the role and significance of power dynamics to the overall equation. The Court of Appeal agreed with Schrenk and his employer that not all insults inflicted on an employee in the workplace are covered by the human rights legislation. They said that:

“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.”

[…]

“[…] 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 has 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 employment.” (our emphasis)

In light of this conclusion, the Court of Appeal quashed the Tribunal’s decision and dismissed the case against Clemas and Schrenk. This ruling did not, however, settle the matter for the parties involved. It was ultimately referred to the Supreme Court of Canada for appeal.

The Issues
Not all human rights codes across the country have the same language, so ultimately, the Supreme Court’s decision will be an interpretation of the British Columbia Code.  However, there are a number of principles we expect the Court to grapple with, which will have more general application and significance.  Here are a few to consider:

1. Who is protected from discrimination and harassment in the workplace?
Clearly, employees who are employed in a traditional employment relationship are covered.  But what about different situations and working relationships that are less traditional but common place nonetheless? Do people who work in the same workplace, interact with one another, but who are not jointly employed, but employed by others, have no human rights protection?  Conversely, do they have a free pass in terms of how they are permitted to behave at work?

What about someone who goes to work and encounters harassment and discrimination by a member of the public?  Think of the waitress who is subjected to sexist comments.  Is she not entitled to protection?  Is the person making these remarks not prohibited by the Code in doing so, because the waitress is at work?

The existing human rights case law suggests that most if not all of these employment-related situations fall within the jurisdiction of human rights tribunals, and so we are hopeful that the Supreme Court will conclude that the Tribunal has jurisdiction to consider Sheikhzadeh-Mashgoul’s complaint.

2. What is “power” in workplace relationships?
In finding that a power imbalance is necessary in order for workplace discrimination and harassment to be captured under “employment” for the purposes of human rights legislation, the British Columbia Court of Appeal relied on an understanding of power that is grounded in traditional employer-employee relationships. This understanding was based on the presence of determinants of power that are largely associated with economic power, for example, the ability to control the finances, set work schedules and to dictate other terms of employment.

This is a very limited view of what “power” is in the workplace.  It is often much more nuanced than this. Among other things, a person’s power in the workplace may be related to their social or political influence on the job site. If a person is perceived as an “outsider” because of their gender, cultural or sexual identity, they may lack social and political power.  What of the person who seemingly has more power in an employment relationship but is mocked by a subordinate based on their religion or cultural identity? Surely that person is entitled to human rights protection.

It will be interesting to review the Court ‘s analysis on power in an employment relationship and whether or not other non-economic determinants will be factored in.

3. The evolution of employment arrangements
One of the reasons why this case is interesting is because it provides valuable insight into the changing nature of the Canadian workforce.

Whereas human rights statutes were drafted in a time when employment relationships were traditional, this case provides a glimpse into a more diverse, modern workforce – a workforce that is no longer characterized by a linear relationship to a single, identifiable employer.

The modern workforce includes employment relationships, like that in Schrenk, governed by multiple contracts that are managed and carried out through their own chain of command. In these relationships, employees may have little (if any relationship to) the actual employer but may have other employment relationships within the chain of command that are employer-like.

The Court has made it clear that human rights statutes are supposed to be interpreted broadly and liberally in a manner consistent with their legal purposes. It will be interesting to see if the Court’s interpretation of employment will be broad enough to capture modern workplace configurations like the work arrangement featured in Schrenk.

4. Muslim harassment
It is a sad commentary on the times in which we live, that this case centres on alleged harassment and discrimination of a Muslim man.  In fact, there are intersectional interests at play, as one additional aspect of the harassment involved Sheikhzadeh-Mashgoul’s perceived sexual identity. If the allegations are true, Schrenk engaged in behaviour that was truly egregious.  According to the Tribunal’s factum, Sheikhzadeh-Mashgoul alleges that his health, home and work life were negatively affected and that his work environment became unsafe and unhealthy.  We are not surprised. These are exactly the type of cases that human rights tribunals across the country should be considering, and for which significant damages should be awarded.

5. The fact that employers (seemed to) be responsive
In this case, it appears that both employers took action despite the fact that the matter and the parties involved did not fall squarely within their own sphere of responsibility. Not only did Sheikhzadeh-Mashgoul’s own employer take action by asking Clemas to remove its employee from the project, Clemas agreed, and when the alleged harassment continued, it terminated Schrenk altogether.

If it is ultimately decided that the Tribunal has jurisdiction, and the case is heard on the merits, it may be that the Tribunal will conclude that Clemas did not do enough to protect Sheikhzadeh-Mashgoul’s interests in being free from harassment and discrimination and that it should have done more to curtail Schrenk’s behaviour.  Nevertheless, Clemas did something, and Omega, Sheikhzadeh-Mashgoul’s own employer, appeared to advocate on behalf of its own employee.

Final Words
Because this case has the potential to provide guidance and/or commentary on a range of issues that are germane to the modern workplace, employers, human resource professionals and employment lawyers are all awaiting the Court’s ruling with much anticipation.

Toronto Employment Lawyer, Janice Rubin, is a co-founder and co-managing partner at Rubin Thomlinson LLP. Janice regularly appears on Best Lawyers and Leading Practioners lists in Canada and is considered one of the country’s foremost experts on employment law.

Toronto Employment Lawyer Megan Forward develops and delivers training sessions for her clients and conducts investigations and workplace assessments to help employers resolve issues related to harassment, poisoned workplace environments and bullying.

1. Sheikhzadeh-Mashgoul v. Clemas Contracting and another, 2015 BCHRT 17 (CanLII)
Schrenk v. British Columbia (Human Rights Tribunal), 2016 BCCA 146 (CanLII)
British Columbia Human Rights Tribunal v. Edward Schrenk, 2016 CanLII 68015 (SCC)

2. The authors would like to thank Devyn Cousineau of the BC Human Rights Tribunal who was co-counsel on the case. She shared with us the factum, and very helpfully answered our questions about the case.

This article was originally posted on rubinthomlinson.com.