SCC confirms that co-workers with different employers are subject to Human Rights Code

In a recent decision, the Supreme Court of Canada (the “SCC”) confirmed that the BC Human Rights Code’s prohibition on discriminatory conduct in the employment context extends to employees employed by different employers, provided a sufficient connection to the complainant’s employment can be established.

“S-M” worked as a civil engineer for Omega and Associates Engineering Ltd. (“Omega”) on a road improvement project. Omega hired Clemas Construction Ltd. (“Clemas”) to handle the construction component of the project. “S” was employed by Clemas as a foreman on the project. S made racist and homophobic statements to S-M while on the job, which S-M in turn raised with his employer Omega. Omega requested that Clemas remove their employee S from the worksite. S continued to harass S-M and Clemas ultimately terminated S’s employment.

S-M filed a complaint with the British Columbia Human Rights Tribunal, alleging that S’s derogatory comments amounted to discrimination in the course of employment, in violation of section 13 of the Human Rights Code (the “Code”). Section 13 states that a person must not discriminate against a person “regarding employment” because of any of the protected grounds under the Code (i.e. race, gender, sexual orientation).

The issue before the Tribunal was not whether S’s alleged conduct amounted to discrimination under section 13, but rather whether this discrimination was “regarding employment”. S applied to dismiss the complaint on the basis that he was not in an employment relationship with S-M and the Tribunal therefore had no jurisdiction over the matter. The Tribunal disagreed and denied S’s application to dismiss. S’s application for judicial review to the British Columbia Supreme Court was denied. The British Columbia Court of Appeal allowed S’s appeal and held that the Tribunal had incorrectly concluded it had jurisdiction over S-M’s section 13 complaint.

The SCC analyzed whether discrimination “regarding employment”, as defined under section 13 of the Code, could only be committed by a fellow employee or supervisor in the workplace. The SCC concluded that the intended scope of section 13 was to protect all employees who suffer discrimination in the employment context and not just those directly affected by the actions of a co-worker or supervisor. This becomes a matter of determining whether the individual who engaged in the discriminatory conduct has a sufficient connection to the workplace so as to bring their actions within the parameters of section 13. The SCC confirmed that this can include discrimination by co-workers, even if they have a different employer. Accordingly, the SCC held that the Tribunal correctly concluded that it had jurisdiction over S-M’s complaint and allowed the appeal.

This is a significant decision for employers. Relationships in the workplace may be covered by the Code even where no employment relationship exists, such as in instances where co-workers have different employers.

The SCC’s full decision in British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 can be found here.

For questions relating to this article, please contact Connor Levy.