Schrenk v. British Columbia (Human Rights Tribunal), 2016 BCCA 146 (CanLII)
The Court set out the facts of the case:
“[2] The appellant 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 civil engineer, was the site representative of a consulting engineering firm serving as the contract administrator on the project. In that capacity, he supervised work done by Clemas. While on the site the appellant made derogatory statements to the complainant and others with respect to the complainant’s place of birth, religion and sexual orientation. Those statements were followed by derogatory emails sent directly to the complainant. Following complaints to Clemas, made by the engineering firm which the complainant represented, the appellant’s employment was terminated on March 28, 2014.” (Emphasis added)
The Complainant filed a complaint with the BC Human Rights Tribunal. On a application to dismiss under section 27(1) of the Human Rights Code, the Tribunal concluded that the complaint was within its jurisdiction despite the lack of an employment relationship between the complainant and the appellant.
Section 13(1)(a) of the Code prohibits discrimination against a person “regarding employment.” The Tribunal concluded that “person” included the appellant because the conduct occurred in the workplace. An application for judicial review to the BC Supreme Court was dismissed.
In the Court of Appeal, the appellant argued that should be construed in a manner “analogous to those set out in the definition,” i.e. employment-like relationships. Such relationships are characterized by two factors: 1. control exercised by the employer over the working conditions; and 2. dependency of the worker on the employer.
In the circumstances, the Tribunal in effect “took jurisdiction over prohibited conduct of any person that might be said to have adversely affected an employee in their employment.” The Tribunal ignored the issue of control over the complainant and based the jurisdictional decision simply on the facts that the complainant was an “employee,” who was adversely affected in his employment, by the appellant “person.” Rather, the Tribunal ought to have asked: “did he stand in such a relationship to the appellant that the appellant was in a position to discriminate against him with respect to employment?”
The Court relied, among others, on Central Okanagan School District No. 23 for the proposition that discrimination regarding employment, relates to “the conduct of an organization in a position to facilitate or perpetuate discriminatory rules or practices. It was not speaking of a bystander to the employment relationship.” The Court concluded:
“[44] Applying those principles to the case at bar, 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.” (Emphasis added)
The Court quashed the decision of the Tribunal.