Schrenk v British Columbia Human Rights Tribunal [2017]

Case summary

Schrenk v British Columbia Human Rights Tribunal is a case about the scope of discrimination regarding employment in British Columbia’s Human Rights Code. Specifically, the Supreme Court of Canada considered whether protection from discrimination in the workplace applies only where the wrongdoer is someone in a position of power or authority over the complainant and can affect the complainant’s employment.

Mr. Schrenk (the respondent) was a site foreman on a road improvement construction project employed by a construction company. The complainant, Mr. Sheikhzadeh-Mashgoul, was also working on the site as an employee-representative of an engineering firm that served as the contract administrator on the project. While on the construction site, the respondent allegedly made derogatory comments to the complainant based on his religious affiliation, place of origin and sexual orientation. The complainant filed a human rights complaint. The respondent applied to have the complaint dismissed without a hearing, arguing that the Human Rights Tribunal (the Tribunal) did not have jurisdiction over the complaint because there was no employment relationship between the two men.

The Tribunal assumed jurisdiction over the complaint and found that workers on a construction site are protected from discriminatory harassment by persons working for another employer on the same site. The Court of Appeal overturned the Tribunal’s decision. The Court of Appeal held that the Tribunal did not have jurisdiction over the complaint because the respondent did not exercise power or authority over the complainant’s employment.

West Coast LEAF’s involvement

West Coast LEAF intervened in this case at the Supreme Court of Canada to argue that discrimination regarding employment must not be approached solely with regard to traditional notions of economic power disparities. To hold otherwise turns back the clock on human rights in this province and ignores the reality of modern workplaces and the myriad ways in which power is understood and acted upon in society. Multiple and overlapping markers of historic disadvantage intersect to reinforce power dynamics. The negative impacts of discrimination and harassment go well beyond economic burdens to encompass psychological harms and the perpetuation of systemic inequality.

Decision

The Supreme Court of Canada released its judgment on December 15, 2017. The Court ruled in the complainant’s favour, finding that human rights law prohibits discrimination in the workplace regardless of whether it is perpetuated by an employer or a co-worker.

We are pleased that the Supreme Court of Canada appreciated that sexual harassment and other forms of discrimination are expressions of power that do not always map onto workplace hierarchies.

Workers in BC are entitled to go to work without fear of sexism, racism, transphobia, homophobia, ableism and other forms of discrimination. Dignity, self-worth, and belonging in the workplace are dependent on a worker’s experience of the whole workplace. Harassment in the workplace is no less harmful if it comes from co-workers or independent contractors instead of from a boss.

Case documents

Application for leave to intervene- Part 1 & Part 2

Written argument- Supreme Court of Canada