Summaries Sunday: OnPoint Legal Research

One Sunday each month OnPoint Legal Research provides Slaw with an extended summary of, and counsel’s commentary on, an important case from the British Columbia, Alberta, or Ontario court of appeal.

Schrenk v. British Columbia (Human Rights Tribunal), 2016 BCCA 146

AREAS OF LAW: Human rights; Employment; Derogatory statements; “Condition of employment”

~Insults inflicted upon employees in the workplace, even in the course of their employment, only fall under s. 13 of the Human Rights Code if the wrongdoer has sufficient employer-given power to impose the unwelcome conduct as a condition of employment, or if the conduct is tolerated by the employer.~

BACKGROUND: The Appellant, Edward Schrenk, was a site foreman employed by a contracting company on a road improvement project in Delta in 2013-2014. The Respondent Mohammadreza Sheikhzadeh-Mashgoul (“Mr. Mashgoul”) was a civil engineer and was the site representative of a consulting engineering firm serving as contract administrator for the project. In that capacity, Mr. Mashgoul supervised work done by the contracting firm. While on site the Appellant made derogatory statements to Mr. Mashgoul and others about Mr. Mashgoul’s place of birth, religion, and sexual orientation. Those statements were followed by derogatory emails sent directly to Mr. Mashgoul. The engineering firm for which Mr. Mashgoul worked complained to the contracting company, and the latter terminated the Appellant’s employment in March 2014. Mr. Mashgoul filed a complaint with the Respondent Human Rights Tribunal in April 2014 against the Appellant, the contracting company, and the City of Delta, which was the owner of the road project. He alleged that the Appellant engaged in unacceptable discriminatory and insulting behaviour, and that Delta and the contracting company permitted or tolerated this behaviour. The Appellant responded that the alleged remarks had no connection to Mr. Mashgoul’s employment, and in fact Mr. Mashgoul was in a position of power over the Appellant. The Appellant and the contracting company brought applications to dismiss the complaint under s. 27(1) of the Human Rights Code, which provides that a complaint may be dismissed if it is not within the jurisdiction of the Tribunal, the acts or omissions alleged do not contravene the Code, there is no reasonable prospect the complaint will succeed, or proceeding with the complaint would not further the purposes of the Code. The Tribunal dismissed the Appellant’s application to dismiss, finding that s. 13 of the Code protects complainants who are employees, liberally defined, who suffer a disadvantage in their employment in whole or in part because of their membership in a protected group. The Appellant then filed a petition for judicial review on the grounds that the Tribunal lacked jurisdiction to hear the complaint. The petition was dismissed. The chambers judge found that the issue was whether Mr. Mashgoul experienced discrimination regarding employment, and agreed with and adopted the reasons of the Tribunal. The chambers judge found that if the Appellant were correct in his interpretation of the Code, an employee could only complain of discrimination if the discrimination came from another employee of the same employer, or that employer.

APPELLATE DECISION: The appeal was allowed. The Appellant said the judge erred in misinterpreting the Code by concluding all that is required to found jurisdiction is that the complainant be negatively affected in the course of his employment by discrimination on prohibited grounds engaged in by any person. Not all discrimination in the workplace constitutes discrimination “regarding employment or any term or condition of employment”, as s. 13 stipulates. The question is whether the relationship between Mr. Mashgoul and the Appellant was of the sort regulated by the Code. The Appellant argued that it is not possible for a supervisor, who has control over and may direct the work of a subordinate co-worker, to complain to the Tribunal that the subordinate has discriminated against him or her regarding employment. In McCormick v. Fasken Martineau DuMoulin LLP, 2014 SCC 39, the Supreme Court of Canada clearly stated that control and dependency define the essence of the employment relationship for the purposes of human rights legislation. The exceptions to this rule are cases where discrimination can be established in the absence of an employment relationship because the subject of the complaint has the ability to influence or interfere with the employment relationship. The Court of Appeal rejected the Tribunal’s narrow conception of the issue on appeal, which was not simply whether the Tribunal had jurisdiction to address the conduct of one employee on a worksite that adversely affected an employee of another employer on that worksite. If the wrongdoer does not have such authority that he or she is able to impose offensive conduct on the complainant as a condition of employment, or if the wrongdoing is not tolerated by the employer, the Tribunal has no jurisdiction over the wrongdoer.

Counsel Comments provided by Edmund P. Caissie, Counsel for the Respondent, Mr. Schrenk

The interesting twist in this Human Rights case was that my client, Edward Schrenk, a construction foreman, was named as a Respondent as well as his employer, Clemas, despite the fact that neither of them had an employment relationship with the Complainant.

Most Human Rights complaints claiming employment discrimination are made by employees against their own employer, and while some of those cases name a fellow employee as a Respondent as well, even those cases are rare.

While there are reported cases of complaints filed, and later sustained by the Court, against parties who were not employers of the Complainant, I argued that all of those cases involved a third party who had influence over the Complainant’s employment, such as granting a licence to work in a profession.

In the Schrenk case, our Court of Appeal correctly, in my humble opinion, reasoned that there had to be an ‘employment like’ relationship or a power imbalance to be redressed, to found jurisdiction for the Human Rights Tribunal.

I argued that our legislature could not have intended that every racial slur or sexist remark or homophobic taunt would be the subject of a Human Rights hearing (in the Schrenk case scheduled for 5 days!), or they would have sanctioned neighbors for offensive language. It is a fair inference that the legislature did not want to open the floodgates to a deluge of such complaints, which would likely overwhelm the Tribunal, where societal evolution was already moving in the right direction to regulate such ‘antisocial’ behaviour.

Another interesting aspect of this case was that I had represented Mr. Schrenk earlier in a case in which he suffered a traumatic brain injury which, according to his neurologist, made it very difficult for him to control the kind of angry outbursts that got him into trouble in this case.

Despite Mr. Schrenk being a victim himself with a significant disability, and despite his own employer firing him for his outbursts against an inspector at his construction site, it was the Human Rights Tribunal itself that opposed our application for judicial review and which opposed our recent appeal to the BCCA. The Complainant did not participate in those appeals at all. (Mr. Schrenk’s employer settled directly with the Complainant by paying him to drop the complaint against Clemas but leave it running against Mr. Schrenk, after we lost the first level of appeal.)

If I had not decided to represent Mr. Schrenk pro bono through the appeal process, the scales of justice would be imbalanced indeed, against an individual who was himself deserving of sympathy and advocacy as a result of his own disability (without in any way condoning the inappropriate things he said to the Complainant).

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