Written by Michael J Weiler
The Supreme Court of Canada has been very active over the years in expanding the protections of human rights legislation which it views as almost constitutionally protected rights. The landmark decision Meiorin 1999 SCR 652 dramatically expanded the obligations on employers in respect of the duty to accommodate. In another landmark ruling issued last month, the SCC has found that discrimination “regarding employment” under the Human Rights Code can be perpetrated by someone other than the complainant’s employer or superior in the workplace. In this case, the perpetrator (“S”) was employed by a separate company on a construction site. He repeatedly harassed an employee (“S-M”) of another company who worked on the same construction site by making highly derogatory remarks to S-M and others about S-M’s sexual orientation, religion and place of birth. S had no direct control over S-M, but the SCC found that S-M could pursue a Human Rights complaint against S and his employer. The case will have significant implications (and create problems) for employers especially those working on multi-employer sites.
The case involved two persons working for different employers at the same worksite. S was a site foreman employed by Clemas and the victim, S-M, was a civil engineer working for another company, Omega, and he was in charge of supervising work done by Clemas. S made racist and homophobic statements about S-M. When the harassment continued Clemas first transferred S and then terminated S. S-M brought a Human Rights complaint against Clemas and S alleging discrimination on the basis of religion, place of origin and sexual orientation. S applied to have the Complaint dismissed arguing he was not in an employment relationship with Clemas or S-M and therefore the Tribunal did not have jurisdiction over S under section 13 of the Code that is limited to discrimination against a person “regarding employment”.
The SCC held that the Tribunal had jurisdiction to deal with S-M’s complaint against S.
The Court confirmed, (in para. 17), that the Code is “quasi-constitutional legislation…[and] attracts a generous interpretation to permit the achievement of its broad public purposes” as set out in section 3. The majority found that the phrase “regarding employment” was broad enough to capture a complaint by S-M against S, even though they were employed by separate employers. It applied what it called a contextual approach that took into account, for example, whether S was integral to S-M’s workplace; did the misconduct occur in S-M’s workplace; and whether S-M’s workplace and work environment were adversely affected. It noted (in para. 56):
In my view, while the person in control of the complainant’s employment may be primarily responsible for ensuring a discrimination-free workplace — a responsibility that is recognized in s. 44(2) of the Code — it does not follow that only a person who is in a relationship of control and dependence with the complainant is responsible for achieving the aims of the Code. Rather, the aspirational purposes of the Code require that individual perpetrators of discrimination be held accountable for their actions. This means that, in addition to bringing a claim against their employer, the complainant may also bring a claim against the individual perpetrator. The existence of this additional claim is especially relevant when the discriminatory conduct of a co-worker persists despite the employer having taken all possible steps to stop it.
The SCC concluded (in para. 69):
Applying this contextual approach to the present case, I find that the alleged conduct by Mr. Schrenk would come within the ambit of s. 13(1)(b). As the foreman of the worksite, Mr. Schrenk was an integral and unavoidable part of Mr. Sheikhzadeh-Mashgoul’s work environment. By denigrating Mr. Sheikhzadeh-Mashgoul on the basis of religion, place of origin, and sexual orientation, his discriminatory behaviour had a detrimental impact on the workplace because it forced Mr. Sheikhzadeh-Mashgoul to contend with repeated affronts to his dignity. This conduct amounted to discrimination regarding employment: it was perpetrated against an employee by someone integral to his employment context. Mr. Sheikhzadeh-Mashgoul’s complaint was consequently within the jurisdiction of the Tribunal pursuant to s. 13(1)(b) of the Code.
A strong dissent by three justices was authored by the Chief Justice. The dissent (see para. 120) would have found that s. 13 is limited to making employers and their equivalents respondents in workplace discrimination claims. It found that a more limited interpretation of s. 13 on the responsibilities and equivalents is consistent with the jurisprudence — an important element in creating certainty for employers and employees and the Tribunal (in para. 130):
First, the broad interpretation proposed by my colleagues would narrow this Court’s decision in McCormick, which confirmed that the nature of the relationship between complainant and respondent is dispositive of whether s. 13(1)(b) applies. If all that is required to link a complainant to a respondent under s. 13(1)(b) is a common work environment or a “sufficient nexus with the employment context” (Justice Rowe’s reasons, at para. 67), it would be unnecessary to consider the relationship between parties, as McCormick instructs. Second, it is difficult to see how someone in a co-worker position like Mr. Schrenk could ever claim a bona fide occupational requirement as a justification for his conduct, as explained in British Columbia (Public Service Employee Relations Commission) v. BCGSEU,  3 S.C.R. 3, which provides the governing framework for assessing workplace discrimination claims. On the interpretation I propose, these difficulties do not arise.
On the basis of the foregoing, the dissenting justices concluded (at para. 131):
For these reasons, I conclude that s. 13(1)(b) is limited to claims arising out of employment or equivalent relationships. I would dismiss the appeal.
This decision will undoubtedly create many unanticipated problems for employers. Expanding the scope of the Code beyond employers and supervisors to those in non-direct relationships will have unanticipated consequences. Here, the employer, Clemas, was named as a respondent despite the fact that it took immediate steps to investigate and act on S-M’s Complaint—first transferring S and then terminating S. But what if S were innocent and the Complaint was spurious—what remedies would S have had against S-M? Most harassment policies protect both the bona fide Complainant and the innocent Respondent employee but, under this analysis, the latter may be left without any recourse and a large legal bill defending himself before the Tribunal.
It is likely that the Tribunal will now see an influx of cases involving not only employers and supervisors but non-employer entities and contractors.
Finally, the SCC has recently found that an arbitrator’s decision on harassment may be binding on a non-employer on a common worksite. Given that the SCC has found that an arbitrator has jurisdiction to apply the Human Rights Code under the collective agreement it may be that employers on a worksite will now have to participate in a grievance filed by an employee of another employer.
The only certainty of this decision is that employment and human rights lawyers will be busier in 2018.