Contractor of Employer Can Be Held Liable in Human Rights Complaint
December 19, 2017
On December 15, 2017 the Supreme Court of Canada (“Supreme Court”) delivered a significant decision in the area of human rights law. According to the Supreme Court, employers are not the only ones who are prohibited from committing discriminatory harassment against employees.
British Columbia Human Rights Tribunal v. Schrenk concerned claims of discrimination in the workplace that were not laid against the Complainant’s employer, an engineering firm (the “Employer”), but rather, against a foreman of a contractor hired by the Employer. The Complainant was a civil engineer working for the Employer. The Employer contracted with the municipality of Delta in British Columbia to supervise a road improvement project. The Complainant was required to supervise the construction contractor (the “Contractor”) as part of his duties.
The Contractor’s foreman (the “Foreman”), engaged in discriminatory behaviour against the Complainant. He directed racial epithets and homophobic comments at the Complainant while on site and via work-related emails. The Complainant brought a claim of discrimination “regarding employment” pursuant to the BC Human Rights Code (the “BC Code“) against both the Foreman and the Contractor (collectively the “Respondents”). The Complainant did so despite the fact that he was not in an employment relationship with the Respondents. In fact, the Complainant’s role provided him with supervisory authority over the Foreman.
The BC Code prohibits a “person” from discriminating against someone “regarding employment”. The Respondents argued that the prohibition against discrimination under the BC Code had no application because the Complainant was not in an employment relationship with them. At first instance, the BC Human Rights Tribunal (the “Tribunal”), held that it had jurisdiction to deal with the complaint. This ruling was affirmed by the BC Supreme Court and subsequently quashed on appeal to the BC Court of Appeal.
By a narrow margin of 5-3-1, a small majority of the Supreme Court affirmed the Tribunal’s ruling that it had jurisdiction to hear the complaint, stating that the prohibition against discrimination “regarding employment” is not limited to protecting employees from discriminatory harassment by their superiors in the workplace. The Supreme Court held that this was consistent with a broad, remedial and purposive reading of the BC Code. Accordingly, the Court declared that the BC Code prohibits discrimination against employees whenever that discrimination has a sufficient nexus with the employment context. This includes discrimination by a co-worker, or another worker on the job site that has a different employer.
In arriving at its decision, the Supreme Court developed a test to determine whether discriminatory conduct has a sufficient nexus with the employment context to be captured by the prohibition under the BC Code. The test is a contextual analysis that considers several non-exhaustive factors, including, (1) whether the respondent was integral to the complainant’s workplace; (2) whether the impugned conduct occurred in the complainant’s workplace; and (3) whether the complainant’s work performance or work environment was negatively affected. The Supreme Court reasoned that the contextual analysis furthers the purposes of the BC Code by acknowledging how employee vulnerability stems not only from economic subordination to their employers, but also from being a captive audience to other perpetrators of discrimination such as site forepersons, customers, co-workers, and employees employed by other employers at or in their workplace.
In this case, the Supreme Court took a broad view of the statutory protection against discrimination in employment under the BC Code. The Ontario Human Rights Code (the “ON Code“), similarly provides a broad grant of protection for employees from discriminatory harassment in the workplace perpetrated by “the employer or agent of the employer or by another employee“. In light of this decision, the quasi-constitutional nature of human rights legislation, the generous approach to interpretation which such statutes attract, and the remedial purpose of the ON Code described in its preamble, it seems quite possible that despite the different wording in respect of discrimination in employment between the BC and ON Codes, the prohibition against discriminatory harassment in Ontario may also extend to an employer’s contractors (and their employees) acting in close nexus with an employer outside of a traditional agency relationship. Also query whether this will encourage a further expansion of the definition of “employer” in Ontario human rights law. We shall wait to see how the ON Code will be interpreted by the Ontario Human Rights Tribunal, Ontario adjudicators and Ontario Courts in light of the Supreme Court’s recent ruling.
British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62
This post was co-authored by Arleen Huggins, Partner and David Ragni, Student-at-Law