SUPREME
COURT OF CANADA
Citation:
British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62
|
Appeal Heard:
March 28, 2017
Judgment Rendered:
December 15, 2017
Docket:
37041
|
Between:
British
Columbia Human Rights Tribunal
Appellant
and
Edward
Schrenk
Respondent
-
and -
Canadian
Association of Labour Lawyers, Canadian Construction Association, Community
Legal Assistance Society, West Coast Women’s Legal Education and Action Fund,
Retail Action Network, Alberta Federation of Labour, International Association
of Machinists and Aerospace Workers Local Lodge 99, Ontario Human Rights
Commission and African Canadian Legal Clinic
Interveners
Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner,
Gascon, Côté, Brown and Rowe JJ.
Reasons for
Judgment:
(paras. 1 to 70)
|
Rowe J. (Moldaver, Karakatsanis, Wagner and Gascon JJ.
concurring)
|
Concurring
Reasons:
(paras. 71 to 95)
|
Abella J.
|
Dissenting
Reasons:
(paras. 96 to 131)
|
McLachlin C.J. (Côté and Brown JJ. concurring)
|
Note: This document is subject to editorial revision before its
reproduction in final form in the Canada Supreme Court Reports.
bchrt v. schrenk
British Columbia Human Rights
Tribunal Appellant
v.
Edward Schrenk Respondent
and
Canadian Association of Labour Lawyers,
Canadian Construction Association,
Community Legal Assistance Society,
West Coast Women’s Legal Education and
Action Fund,
Retail Action Network,
Alberta Federation of Labour,
International Association of Machinists
and Aerospace Workers Local Lodge 99,
Ontario Human Rights Commission and
African Canadian Legal Clinic Interveners
Indexed as: British Columbia
Human Rights Tribunal v. Schrenk
2017 SCC 62
File No.: 37041.
2017: March 28; 2017: December 15.
Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis,
Wagner, Gascon, Côté, Brown and Rowe JJ.
on appeal from the court of appeal for british columbia
Human rights — Human Rights Tribunal —
Jurisdiction — Discrimination — Employment — Act prohibiting a “person” from
discriminating against someone “regarding employment” — Scope of prohibition — Complaint
alleging discrimination at workplace by co‑worker — Whether
discrimination “regarding employment” can be perpetrated by someone other than
complainant’s employer or superior — Whether British Columbia Human Rights
Tribunal erred in finding that it had jurisdiction over complaint — Human
Rights Code, R.S.B.C. 1996, c. 210, ss. 1 “employment”, “person”,
13(1)(b), 27(1)(a).
S‑M
worked for Omega and Associates Engineering Ltd. as a civil engineer on a road improvement project. Omega had
certain supervisory powers over employees of Clemas Construction Ltd., the primary
construction contractor on the project. Clemas employed S as site foreman and
superintendent. When S made racist and homophobic statements to S‑M on
the worksite, S‑M raised the comments with Omega. Following further
statements by S, Omega asked Clemas to remove S from the site. Clemas did so
without delay, but S continued to be involved on the project in some capacity.
When the harassment continued, Clemas terminated S’s employment.
S‑M
filed a complaint before the British Columbia Human Rights Tribunal against S
alleging discrimination on the basis of religion, place of origin, and sexual orientation.
S applied to dismiss the complaint, arguing that s. 13 of the Human
Rights Code had no application because S‑M was not in an employment
relationship with S. The Tribunal held that it had jurisdiction to deal with
the complaint and, accordingly, it denied S’s application under s. 27(1)(a)
of the Code. The British Columbia Supreme Court dismissed S’s application for
judicial review, but the Court of Appeal allowed S’s appeal and found that the
Tribunal erred in law by concluding that it had jurisdiction over the
complaint.
Held
(McLachlin C.J. and Côté and Brown JJ. dissenting): The appeal should be allowed.
Per
Moldaver, Karakatsanis, Wagner, Gascon and Rowe JJ.: Section 13(1)(b) of the Code is not limited to
protecting employees solely from discriminatory harassment by their superiors
in the workplace. Reading the Code in line with the modern principle of
statutory interpretation and the particular rules that apply to the
interpretation of human rights legislation, s. 13(1)(b) prohibits
discrimination against employees whenever that discrimination has a sufficient
nexus with the employment context. This may include discrimination by their co‑workers,
even when those co‑workers have a different employer.
In
determining whether discriminatory conduct has a sufficient nexus with the
employment context, the Human Rights Tribunal must conduct a contextual
analysis that considers all relevant circumstances. Factors which may inform
this analysis include: (1) whether the respondent was integral to the claimant’s
workplace; (2) whether the impugned conduct occurred in the claimant’s
workplace; and (3) whether the claimant’s work performance or work
environment was negatively affected. These factors are not exhaustive and their
relative importance will depend on the circumstances. This contextual
interpretation furthers the purposes of the Code by recognizing 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 a harassing co‑worker.
This
contextual approach to determining whether conduct amounts to discrimination
“regarding employment” is supported by the text, the scheme and the purpose of the Code.
It is equally supported by the legislative history of the Code and it aligns with
the recent jurisprudence.
The
text of s. 13(1)(b) prohibits employment discrimination by any “person”.
In the context of the Code, the term “person” defines the class of actors against
whom the prohibition in s. 13(1)(b) applies. The ordinary meaning of
“person” is broad, and encompasses a broader range of actors than merely any person with
economic authority over the complainant. The definition of “person” in s. 1
of the Code is not exhaustive and provides additional meanings that supplement
its ordinary meaning. Next, the words “regarding employment” are critical
because they delineate the kind of discrimination that s. 13(1)(b)
prohibits. In this case, they indicate that the discrimination at issue must be
related to the employment context in some way without solely prohibiting
discrimination within hierarchical workplace relationships. Section 13(1)(b)
defines who can suffer workplace discrimination rather than restricting who can
perpetrate discrimination. In this way, it prohibits discriminatory conduct
that targets employees so long as that conduct is sufficiently related to the
employment context.
The
scheme of the Code reinforces this contextual interpretation of s. 13(1)(b).
First, the presumption against redundancy in legislative drafting underpins the
view that the prohibition against discrimination “regarding employment” applies
to more than just employers, who are already subject to a prohibition against discrimination
“regarding any term or condition of employment”. Further, where the Code seeks
to limit the class of actors against whom a particular prohibition applies, it
employs specific language which contrasts with the use of the general term
“person”. Finally, the structure of the Code supports an approach that views
employment as a context requiring remedy against the exploitation of
vulnerability rather than as a relationship needing unidirectional protection.
The
modern principle of interpretation requires that courts approach statutory
language in the manner that best reflects the underlying aims of the statute.
Here, the contextual approach aligns with the remedial purposes set out in s. 3 of
the Code as it gives employees a greater scope to obtain remedies before the
Tribunal.
Finally,
while the legislative history is not determinative, it indicates that the
British Columbia Legislature intended
to expand the scope of s. 13(1)(b) when it removed the word “employer” and
replaced it with the much broader term “person”.
Consequently,
applying the correctness standard of review, the Tribunal did not err in concluding that S’s conduct
was covered by s. 13(1)(b) despite the fact that he was not S‑M’s
employer or superior in the workplace. As the foreman of the worksite, S was an
integral and unavoidable part of S‑M’s work environment. S’s discriminatory
behaviour had a detrimental impact on the workplace because it forced S‑M
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. S‑M’s complaint was
consequently within the jurisdiction of the Tribunal pursuant to s. 13(1)(b)
of the Code.
Per Abella J.:
The issue in this case is whether employment discrimination under the British
Columbia Human Rights Code can be found where the harasser is not in a
position of authority over the complainant. The analysis requires that the meaning of employment discrimination be
considered in a way that is consistent with, and emerges from, the Court’s well‑settled
human rights principles, and not just the particular words of the Code. Applying these principles leads to the
conclusion that an employee is protected from discrimination related to or
associated with his or her employment, whether or not he or she occupies a
position of authority. The Human Rights Tribunal, as a result, has jurisdiction
to hear the complaint.
The starting point for the discrimination
analysis is the prima facie test for discrimination set out
in Moore v. British Columbia (Education), [2012] 3 S.C.R. 360. In the
employment context, the complainant must demonstrate that he or she has a
characteristic protected under the Code, has experienced an adverse
impact “regarding employment”, and that the protected characteristic was a
factor in the adverse impact. The question posed by s. 13(1)(b) is whether
the complainant has experienced an adverse impact related to or associated with
his or her employment. Section 13(1)(b) is meant to protect all employees from
the indignity of discriminatory conduct in a workplace, verbal or otherwise. The discrimination inquiry is concerned with the impact on the
complainant, not the intention or authority of the person who is said to be
engaging in discriminatory conduct. The key is whether that harassment has a
detrimental effect on the complainant’s work environment. Discrimination can
and does occur in the absence of an economic power imbalance. It cannot depend
on technical lines of authority which may end up defeating the goals of human
rights legislation. All individuals have the right to be protected from
discrimination in the workplace, including those in a position of authority. This
approach is responsive to the realities of modern workplaces, many of which
consist of diverse organizational structures.
While employers have a special
duty and capacity to address discrimination, this does not prevent individual harassers from also potentially being held responsible, whether or not
they are in authority roles. Prohibiting all “persons” in a workplace from
engaging in discrimination recognizes that preventing employment discrimination
is a shared responsibility among those who share a workplace. This is
especially so where the employer’s best efforts are inadequate to resolve the
issue or where, as here, the subject of the assault himself occupies a position
of some authority. The harasser’s degree of control and ability to stop the
offensive conduct is clearly relevant, but this goes to the factual matrix, not
to the jurisdiction of the Tribunal to hear the complaint.
Per McLachlin C.J.
and Côté and Brown JJ. (dissenting): The workplace discrimination
prohibition in s. 13(1)(b) of the Human Rights Code applies only to
employer‑employee or similar relationships and authorizes claims against
those responsible for ensuring that workplaces are free of
discrimination. This conclusion is consistent with the text, context and
purpose of s. 13(1)(b), as well as with the jurisprudence. Therefore, the
Human Rights Tribunal had no jurisdiction over the complaint.
The text of the provision, read as
a whole, suggests that the Legislature was targeting discrimination committed
directly or through inaction by an employer or a person in an employer‑like
relationship with the complainant. Section 1 of the Code defines “employment”
in terms of the relationship between the complainant and the employer, master
or principal which suggests
that there is something about the nature or extent of responsibility over work
or the workplace that defines who can perpetrate discrimination “regarding
employment” for the purpose of s. 13(1)(b). The use of the word “person” at the outset of
s. 13(1) neither expands nor limits the ambit of the section because the
words controlling the ambit of the protection are “regarding employment”.
A contextual reading of
s. 13(1) also supports that view. First, s. 14 provides a separate protection against discrimination by unions and associations. If
s. 13(1)(b) were interpreted so as to allow claims against anyone in the
workplace, most of s. 14 would be redundant. Second, the scheme of the
Code suggests that ss. 7 to 14 not intended to govern private acts of
discrimination between individuals in a general sense. In provisions where the
prohibition initially appears broad enough to catch private communications or
interactions between private citizens more generally, specific exclusions are
set out. No such exclusions are present in s. 13(1)(b), simply because it
was not intended to cover such broad claims. Third, the scheme of the Code also
supports the view that the Legislature was concerned with power imbalances —
rather than targeting all acts of discrimination, it narrowed its focus to discrimination
by those in a position of power over more vulnerable people. Fourth, if
s. 13(1)(b) enables a claim based on emails sent after S was removed from
the project and workplace, it is not clear how s. 13(1)(b) and
s. 7(2) can be reconciled. Under that provision, no complaint can be
brought on the basis of a discriminatory, though private, communication between
individuals. Finally, s. 44(2) of the Code confirms the Legislature’s
intent to target discrimination arising from the employment or equivalent
relationship. It makes employers and their equivalents respondents in
workplace discrimination claims.
Focussing on those responsible for
maintaining a discrimination‑free workplace also upholds the Code’s
purpose. Where they fail to intervene to prevent or correct discrimination,
s. 13(1)(b) is engaged. While this interpretation may preclude claims under the Code against harassing co‑workers, an employee’s
remedy is to go to the employer or person responsible for providing a
discrimination‑free workplace. If the employer fails to remedy the
discrimination, the employee can bring a claim against the employer under s. 43
of the Code.
Finally, an interpretation of
s. 13(1)(b) predicated on the responsibilities of employers and their
equivalents is consistent with the jurisprudence, whereas the broad
interpretation proposed by the majority would conflict with the jurisprudence in two ways. First, it would narrow the principle that the nature of the
relationship between complainant and respondent is dispositive of whether
s. 13(1)(b) applies. Second, it is difficult to see how a co‑worker
like S could ever claim a bona fide occupational requirement as a justification
for his conduct.
Cases Cited
By Rowe J.
Referred
to: McCormick v. Fasken Martineau DuMoulin LLP, 2014 SCC 39, [2014]
2 S.C.R. 108; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Rizzo
& Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Ontario
Human Rights Commission v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; Canadian
National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1
S.C.R. 1114; Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84; University
of British Columbia v. Berg, [1993] 2 S.C.R. 353; Janzen v. Platy Enterprises Ltd., [1989]
1 S.C.R. 1252; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; Gravel
v. City of St‑Léonard, [1978] 1 S.C.R. 660; R.
v. Ulybel Enterprises Ltd., 2001 SCC 56, [2001] 2 S.C.R. 867; Merk v.
International Association of Bridge, Structural, Ornamental and Reinforcing
Iron Workers, Local 771, 2005 SCC 70, [2005]
3 S.C.R. 425.
By Abella J.
Distinguished:
McCormick v. Fasken Martineau DuMoulin LLP, 2014 SCC 39, [2014] 2 S.C.R.
108; referred to: Winnipeg School Division No. 1 v. Craton,
[1985] 2 S.C.R. 150; Ontario Human Rights Commission v. Simpsons‑Sears
Ltd., [1985] 2 S.C.R. 536; Robichaud v. Canada (Treasury Board),
[1987] 2 S.C.R. 84; Moore v. British Columbia (Education), 2012 SCC 61,
[2012] 3 S.C.R. 360; Stewart v. Elk Valley Coal Corp., 2017 SCC 30,
[2017] 1 S.C.R. 591; Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R.
1252.
By McLachlin C.J. (dissenting)
Rizzo
& Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; McCormick v. Fasken
Martineau DuMoulin LLP, 2014 SCC 39, [2014] 2 S.C.R. 108; New Brunswick
(Human Rights Commission) v. Potash Corporation of Saskatchewan Inc., 2008
SCC 45, [2008] 2 S.C.R. 604; University of British Columbia v. Berg,
[1993] 2 S.C.R. 353; Robichaud v. Canada (Treasury Board), [1987] 2
S.C.R. 84; Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252; British
Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3
S.C.R. 3.
Statutes and Regulations Cited
Administrative Tribunals Act, S.B.C.
2004, c. 45, s. 59.
Canadian Human Rights Act, S.C. 1976‑77,
c. 33, s. 7(b).
Human Rights Act, S.B.C. 1969,
c. 10, ss. 2(d) “employer”, 5.
Human Rights Act, S.B.C. 1984,
c. 22, s. 8.
Human Rights Act, S.M. 1974, c. 65,
s. 6(1)(a).
Human Rights Amendment Act, 1992, S.B.C.
1992, c. 43, s. 6.
Human Rights Code, R.S.B.C. 1996,
c. 210, ss. 1 “discrimination”, “employment”, “person”, 3, 7 to 14,
27, 37(2)(a), (b), (c)(i), (d)(iii), 43, 44.
Human Rights Code of British Columbia Act, S.B.C. 1973, c. 119, s. 1.
Authors Cited
Driedger, Elmer A. Construction of Statutes, 2nd ed.
Toronto: Butterworths, 1983.
Hall, Michael. “Racial Harassment in Employment: An Assessment of
the Analytical Approaches” (2006‑2007), 13 C.L.E.L.J. 207.
Sullivan, Ruth. Sullivan on the Construction of Statutes, 6th
ed. Markham, Ont.: LexisNexis, 2014.
Sullivan, Ruth. Statutory Interpretation, 3rd ed. Toronto:
Irwin Law, 2016.
APPEAL
from a judgment of the British Columbia Court of Appeal (MacKenzie, Willcock
and Fenlon JJ.A.), 2016 BCCA 146, 86 B.C.L.R. (5th) 221, 385 B.C.A.C. 185, 665
W.A.C. 185, 2016 CLLC ¶230‑025,
[2016] 9 W.W.R. 440, 400 D.L.R. (4th) 44, 84 C.H.R.R. D/40, [2016] B.C.J. No. 658
(QL), 2016 CarswellBC 869 (WL Can.), setting aside a decision of Brown J., 2015
BCSC 1342, [2015] B.C.J. No. 1629 (QL), 2015 CarswellBC 2155 (WL Can.),
affirming a decision of the British Columbia Human Rights Tribunal, 2015 BCHRT
17, [2015] B.C.H.R.T.D. No. 17 (QL), 2015 CarswellBC 190 (WL Can.). Appeal
allowed, McLachlin C.J. and Côté and Brown JJ. dissenting.
Katherine Hardie and Devyn Cousineau, for the appellant.
Mark D.
Andrews, Q.C., David G. Wong and Stephanie D. Gutierrez, for the respondent.
Douglas Wray and Jesse Kugler, for
the intervener the Canadian Association of Labour Lawyers.
David Outerbridge and Jeremy Opolsky, for the intervener the
Canadian Construction Association.
Lindsay M.
Lyster and Juliana Dalley, for the intervener the
Community Legal Assistance Society.
Clea F. Parfitt and Rajwant Mangat, for the intervener the West
Coast Women’s Legal Education and Action Fund.
Robin J.
Gage, Kate Feeney and Erin Pritchard, for the intervener the Retail
Action Network.
Kristan McLeod, for the interveners the
Alberta Federation of Labour and the International Association of Machinists
and Aerospace Workers Local Lodge 99.
Reema Khawja, for the intervener the Ontario
Human Rights Commission.
Faisal Mirza, Danardo Jones and Dena M.
Smith, for
the intervener the African Canadian Legal Clinic.
The judgment of Moldaver, Karakatsanis,
Wagner, Gascon and Rowe JJ. was
delivered by
Rowe J. —
I.
Introduction
[1]
This case is about the scope of the prohibition against
discrimination “regarding employment” under s. 13(1)(b) of the
British Columbia Human Rights Code, R.S.B.C. 1996, c. 210. On April 3,
2014, Mr. Mohammadreza Sheikhzadeh-Mashgoul filed a complaint with the
appellant, the British Columbia Human Rights Tribunal, against the respondent,
Mr. Edward Schrenk, alleging employment discrimination based on religion, place
of origin, and sexual orientation. Mr. Schrenk responded with an application to
dismiss under s. 27(1)(a) of the Code, in which he argued that the alleged
conduct was not discrimination “regarding employment” and was consequently
beyond the jurisdiction of the Tribunal. The crux of Mr. Schrenk’s argument is
simple: as he was not in a position of economic authority over Mr.
Sheikhzadeh-Mashgoul — he was neither his employer nor his superior in the
workplace — his conduct, however egregious, could not be considered
discrimination “regarding employment” within the meaning of the Code.
[2]
At issue, then, is the question of whether
discrimination “regarding employment” can ever be perpetrated by someone other
than the complainant’s employer or superior in the workplace. To be clear, the
issue is not whether Mr. Schrenk’s alleged conduct would amount to discrimination;
no one disputes this. Rather, the question in this appeal is whether such
discrimination was “regarding employment”.
[3]
I conclude that it was. The scope of s. 13(1)(b)
of the Code is not limited to protecting employees solely from
discriminatory harassment by their superiors in the workplace. Rather, its
protection extends to all employees who suffer discrimination with a sufficient
connection to their employment context. This may include discrimination by
their co-workers, even when those co-workers have a different employer.
Consequently, the Tribunal did not err in concluding that Mr. Schrenk’s conduct
was covered by s. 13(1)(b) despite the fact that he was not Mr. Sheikhzadeh‑Mashgoul’s
employer or superior in the workplace.
II.
Facts
[4]
Mr. Sheikhzadeh-Mashgoul was a civil engineer
working for Omega and Associates Engineering Ltd., an engineering firm hired by
the municipality of Delta in British Columbia to supervise a road improvement
project. In that capacity, he supervised work by Clemas Contracting Ltd., the
primary construction contractor hired by Delta to carry out the project.
[5]
The contract between Delta and Clemas specified
that Omega, acting as consulting engineer, had certain supervisory powers over
Clemas employees, including the right to ask for the removal of any Clemas
worker who appeared “to be incompetent or to act in a disorderly or intemperate
manner”.
[6]
Work on the project began in August 2013. Clemas
employed Mr. Schrenk as site foreman and superintendent. There is nothing to
indicate that Mr. Sheikhzadeh-Mashgoul and Mr. Schrenk had met before this.
[7]
Mr. Sheikhzadeh-Mashgoul immigrated to Canada
from Iran and identifies as Muslim. In his complaint before the Tribunal, he
alleges a number of incidents involving Mr. Schrenk. For the purpose of
considering the question in this appeal, neither the Tribunal nor this Court
make findings of fact nor is there a disposition on the merits of Mr.
Sheikhzadeh-Mashgoul’s complaint. Rather the facts as alleged by Mr.
Sheikhzadeh-Mashgoul are treated as being accurate.
[8]
The first incident occurred in September 2013
when Mr. Schrenk asked Mr. Sheikhzadeh-Mashgoul about his background. Upon
learning of Mr. Sheikhzadeh-Mashgoul’s origin and religion, Mr. Schrenk asked
in front of other employees, “You are not going to blow us up with a suicide
bomb, are you?” (2015 BCHRT 17 (“Tribunal decision”), at para. 18 (CanLII)).
Another incident occurred in November 2013, when Mr. Schrenk shoved Mr.
Sheikhzadeh-Mashgoul and called him a “fucking Muslim piece of shit” (ibid.,
at para. 20). As Mr. Sheikhzadeh-Mashgoul went to call his supervisor, Mr.
Schrenk continued, asking “Are you going to call your gay friend?” (ibid.,
at para. 23).
[9]
Mr. Sheikhzadeh-Mashgoul raised Mr. Schrenk’s
comments with his employer, Omega. The possibility of removing Mr. Schrenk from
the worksite — should his behaviour persist — was discussed at a regularly
scheduled meeting between Mr. Schrenk, Mr. Sheikhzadeh-Mashgoul and
representatives from Omega, Delta and Clemas.
[10]
Mr. Schrenk persisted. On December 13, 2013, he
yelled at Mr. Sheikhzadeh-Mashgoul, “Go back to your mosque where you came
from” (Tribunal decision, at para. 28). After this incident, both Delta and
Omega asked Clemas to remove Mr. Schrenk from the site. Although Clemas did so
without delay, Mr. Schrenk continued to be involved on the project in some
capacity until January 2014. For the time being, he remained a Clemas employee on
other projects.
[11]
Mr. Schrenk’s removal from the worksite did not
end Mr. Sheikhzadeh‑Mashgoul’s troubles. In March 2014, Mr. Schrenk sent
an unsolicited email to Mr. Sheikhzadeh‑Mashgoul in which he made
derogatory insinuations about his sexual orientation. Mr. Schrenk copied the
email to two Clemas supervisors; Mr. Sheikhzadeh‑Mashgoul forwarded it to
Omega, which in turn forwarded it to Clemas. Clemas’ project superintendent
requested that Mr. Schrenk stop sending such emails. Nevertheless, the next day
Mr. Schrenk sent another derogatory email of a homophobic nature to Mr.
Sheikhzadeh‑Mashgoul. That email was also forwarded to Clemas. Following
this, Clemas terminated Mr. Schrenk’s employment on March 28, 2014.
[12]
On April 3, 2014, Mr. Sheikhzadeh‑Mashgoul
filed a complaint before the Tribunal against Mr. Schrenk, Clemas, and Delta,
alleging discrimination on the basis of religion, place of origin, and sexual
orientation, all of these being prohibited grounds of discrimination under the
Code. He later withdrew the claim against Delta.
[13]
Mr. Schrenk and Clemas both applied to dismiss
the complaint pursuant to s. 27(1)(a), (b), (c) and (d)(ii) of the Code. Under
s. 27(1)(a), they argued that the Tribunal did not have jurisdiction over the
complaint because Mr. Sheikhzadeh‑Mashgoul was not in an employment
relationship with Clemas or Mr. Schrenk and, hence, s. 13 of the Code had no
application. This appeal relates only to Mr. Schrenk’s application under s.
27(1)(a).
III.
Relevant Statutory Provisions
[14]
The relevant portions of the Code read:
1 In
this Code:
. . .
“employment”
includes the relationship of master and servant, master and apprentice and
principal and agent, if a substantial part of the agent’s services relate to
the affairs of one principal, and “employ” has a corresponding
meaning;
. . .
“person”
includes an employer, an employment agency [a person who undertakes, with or
without compensation, to procure employees for employers or to procure
employment for persons], an employers’ organization [an organization of
employers formed for purposes that include the regulation of relations
between employers and employees], an occupational association [an
organization, other than a trade union or employers’ organization, in which
membership is a prerequisite to carrying on a trade, occupation or
profession] and a trade union [an organization of employees formed for
purposes that include the regulation of relations between employees and
employers];
. . .
3 The purposes of this Code are as
follows:
(a)
to foster a society in British Columbia in which there are no impediments to
full and free participation in the economic, social, political and cultural
life of British Columbia;
(b)
to promote a climate of understanding and mutual respect where all are equal
in dignity and rights;
(c)
to prevent discrimination prohibited by this Code;
(d)
to identify and eliminate persistent patterns of inequality associated with
discrimination prohibited by this Code;
(e)
to provide a means of redress for those persons who are discriminated against
contrary to this Code.
. . .
13 (1) A
person must not
(a) refuse to
employ or refuse to continue to employ a person, or
(b) discriminate
against a person regarding employment or any term or condition of employment
because of the race,
colour, ancestry, place of origin, political belief, religion, marital
status, family status, physical or mental disability, sex, sexual
orientation, gender identity or expression, or age of that person or because
that person has been convicted of a criminal or summary conviction offence
that is unrelated to the employment or to the intended employment of that
person.
. . .
27 (1) A member or panel may, at any time after a
complaint is filed and with or without a hearing, dismiss all or part of the complaint
if that member or panel determines that any of the following apply:
(a) the
complaint or that part of the complaint is not within the jurisdiction of the
tribunal;
(b) the acts or
omissions alleged in the complaint or that part of the complaint do not
contravene this Code;
(c) there is no
reasonable prospect that the complaint will succeed;
(d) proceeding
with the complaint or that part of the complaint would not
(i) benefit the
person, group or class alleged to have been discriminated against, or
(ii) further the
purposes of this Code;
. . .
44 (1) A
proceeding under this Code in respect of a trade union, employers’
organization or occupational association may be taken in its name.
(2)
An act or thing done or omitted by an employee, officer, director, official
or agent of any person within the scope of his or her authority is deemed to
be an act or thing done or omitted by that person.
|
IV.
Decisions Below
A.
British Columbia Human Rights Tribunal, 2015
BCHRT 17
[15]
In their application to dismiss, Mr. Schrenk and
Clemas both argued that the Tribunal had no jurisdiction under s. 13(1)(b) as
neither of them were in an employment relationship with Mr. Sheikhzadeh‑Mashgoul.
Mr. Schrenk emphasized that he could not discriminate against Mr. Sheikhzadeh‑Mashgoul
regarding his employment as he had no control over him.
[16]
The Tribunal held that it had jurisdiction to
deal with the complaint. Accordingly, it denied Mr. Schrenk’s and Clemas’
applications under s. 27(1)(a). It also denied their application for dismissal
of the complaint under other subsections of s. 27. This latter part of the
decision is not dealt with in this appeal.
[17]
With regard to s. 13(1)(b), the Tribunal found
that it prohibits a “person” from discriminating regarding employment and that
the Code does not limit “person” to an employer or someone in an
employment-like relationship with the complainant. The Tribunal had regard to
this Court’s statement in McCormick v. Fasken Martineau DuMoulin LLP,
2014 SCC 39, [2014] 2 S.C.R. 108, that “quasi-constitutional legislation . . .
attracts a generous interpretation to permit the achievement of its broad
public purposes” (para. 17). In light of this, the Tribunal held that s. 13
“protects those in an employment context”, including a complainant who is an
employee “who suffers a disadvantage in his or her employment in whole or in
part because of his or her membership in a protected group” (para. 45). The
Tribunal further held that protection under s. 13 is “not limited to
discrimination by an employer” (para. 46). The Tribunal concluded:
. . . following on the generous interpretation of the Code reiterated by the
Supreme Court of Canada in McCormick, protection of employees on a
construction site against other actors on that site falls within the broad
public policy purposes of the Code. Like employees in a single workplace
with one employer, the cohort of employees and dependent contractors on a
construction site may work for different employers, but are all engaged in a
common enterprise: completing the project whatever it may be. Generally, they
work in close proximity to, and interact with, one another. It would be unduly
artificial and not in keeping with the broad public policy purposes of the Code
to exclude employees on a construction site from the protections mandated
by s. 13 simply because the alleged perpetrator of discriminatory behaviour
worked for another employer on that site. [para. 50]
[18]
With respect to Mr. Schrenk’s application, the
Tribunal found that he could be liable under s. 13 given that Mr. Sheikhzadeh‑Mashgoul
was an employee — although not an employee of Clemas or Mr. Schrenk — who
claimed that he had been negatively affected in his employment because of
discriminatory harassment by Mr. Schrenk. The Tribunal found that such
discrimination could occur even though Mr. Sheikhzadeh‑Mashgoul, as
supervising engineer, had significant influence over how Clemas and Mr. Schrenk
performed their work.
B.
Supreme Court of British Columbia, 2015 BCSC
1342
[19]
Mr. Schrenk sought judicial review of the
Tribunal’s decision. As he had before the Tribunal, Mr. Schrenk argued that the
complaint did not fall within the scope of s. 13(1)(b) because Mr. Sheikhzadeh‑Mashgoul
was not in an employment relationship with him or with Clemas, based on the factors
set out in McCormick.
[20]
Brown J. dismissed the petition. Applying the
standard of correctness as required by the British Columbia Administrative
Tribunals Act, S.B.C. 2004, c. 45, she concluded that the Tribunal did not
err in its interpretation and application of s. 13(1)(b) to the case. In her
view, the issue before the Tribunal was not whether Mr. Sheikhzadeh‑Mashgoul
was in an employment relationship with either Mr. Schrenk or Clemas but rather
whether he had experienced discrimination “regarding employment”. Justice Brown
viewed Mr. Schrenk’s interpretation as unduly narrow. Rather, she concluded
that restricting s. 13(1)(b) to claims against one’s employer or against
another employee of that same employer would “be contrary to common sense and to
current employment circumstances” (para. 9 (CanLII)).
C.
British Columbia Court of Appeal, 2016 BCCA 146, 400 D.L.R. (4th) 44
[21]
The Court of Appeal unanimously allowed Mr.
Schrenk’s appeal. Applying the standard of correctness, it found the Tribunal
erred in law by concluding that it had jurisdiction to deal with the complaint.
[22]
Willcock J.A. stated that the Tribunal had based
its finding that it had jurisdiction on three factors: Mr.
Sheikhazadeh-Mashgoul “was an ‘employee’. . . ; the conduct negatively affected
him in his employment; and [Mr. Schrenk], the purported source of the
discrimination, was a ‘person’” (para. 32). Willcock J.A. viewed the question
differently: it was not whether Mr. Schrenk came within the definition of
“person” or whether Mr. Sheikhzadeh‑Mashgoul was engaged in “employment”,
but rather “whether the allegation made by [Mr. Sheikhazadeh-Mashgoul] against
[Mr. Schrenk] was a complaint about conduct that might possibly amount to
discrimination ‘regarding employment’” (para. 30).
[23]
Willcock J.A. concluded that jurisdiction under
s. 13(1)(b) was not so wide as to encompass “conduct [by] any person that might
be said to have adversely affected an employee in their employment” (para. 31).
He drew the following distinction:
There is a difference between the
emotional and psychological burdens imposed upon disadvantaged people as a
result of ignorant, malicious, or thoughtless comments made by those they
encounter in day-to-day life, and those which amount to discrimination
regarding employment. With respect to the former, a human rights tribunal may
be able to do nothing. Bigots and xenophobes impose invidious and lasting
harms, but they may be avoided on the street without fear of employment-related
economic consequences. The subjects of discrimination should not have to bear
any economic burden as a result of that discrimination. That is the sphere in
which the legislature acted, and that is one of the ills that the Code
expressly seeks to address. [para. 33]
[24]
For Willcock J.A. discrimination “regarding
employment” requires the improper exercise of economic power in the
traditional “master-servant” relationship and this is all that s. 13(1)(b) is
intended to guard against (Code, s. 1). Thus, the Tribunal’s jurisdiction is
limited to addressing complaints against those who have the power to inflict
discriminatory conduct as a condition of employment. On this basis, Willcock
J.A. concluded:
Not all insults inflicted upon
employees, even in the course of their employment, amount to discrimination
regarding employment. Such insults can amount to discrimination regarding
employment if the wrongdoer is clothed by the employer with such authority that
he or she is able to impose that unwelcome conduct on the complainant as a
condition of employment, or if the wrongdoing is tolerated by the employer. If
the wrongdoer has no such power or authority, the Tribunal has jurisdiction to
consider whether the complainant’s employer played some role in allowing the
conduct to occur or continue, in which case the insult is endured as a
consequence of employment. But even then, the Tribunal has no jurisdiction over
the wrongdoer. [Emphasis deleted; para. 36.]
[25]
Applying this to the present case, Willcock J.A.
found that the Tribunal did not “have jurisdiction to address a complaint made
against one who is rude, insulting or insufferable but who is not in a position
to force the complainant to endure that conduct as a condition of his
employment” (para. 44). Consequently, the Tribunal did not have jurisdiction
over Mr. Schrenk as he was not in a position to impose the discriminatory
conduct on Mr. Sheikhzadeh‑Mashgoul as a condition of his employment.
[26]
The Tribunal appealed the Court of Appeal’s
decision to this Court.
V.
Issue
[27]
Did the Tribunal err in concluding that
discriminatory harassment by a co-worker may fall within the scope of the
prohibition against discrimination “regarding employment” under
s. 13(1)(b) of the Code?
VI.
Analysis
[28]
The standard of review is correctness by virtue
of s. 59 of the Administrative Tribunals Act. As this Court stated in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008]
1 S.C.R. 190, at para. 50, “[w]hen applying the
correctness standard, a reviewing court will not show deference to the decision
maker’s reasoning process; it will rather undertake its own analysis of the
question”. Accordingly, it is necessary to conduct our own analysis as to
whether the Tribunal erred in its interpretation of s. 13(1)(b).
[29]
I note at the outset that this appeal calls for
an exercise in statutory interpretation. The question before this Court is
whether the words of s. 13(1)(b) of the Code can encompass discrimination only
by an employer or a superior in the workplace. While we disagree in the result,
the Chief Justice and I agree that this question requires an interpretation of
the words “regarding employment”. For this reason, I respectfully differ from
Justice Abella when she suggests that our analysis need not be rooted in “the
particular words of British Columbia’s Code” (para. 73). While human rights
jurisprudence provides significant guidance regarding the scope of
“discrimination” generally, our starting point remains the words adopted
by the British Columbia Legislature when defining the scope of discrimination
“regarding employment” specifically.
[30]
In Rizzo & Rizzo Shoes Ltd. (Re),
[1998] 1 S.C.R. 27, at para. 21, quoting E. A. Driedger, Construction of
Statutes (2nd ed. 1983), at p. 87, this Court endorsed the modern principle
of statutory interpretation, which must guide our interpretation of the Code
in this appeal:
Today there is only one principle
or approach, namely, the words of an Act are to be read in their entire context
and in their grammatical and ordinary sense harmoniously with the scheme of the
Act, the object of the Act, and the intention of Parliament.
[31]
Added to the modern principle are the particular
rules that apply to the interpretation of human rights legislation. The
protections afforded by human rights legislation are fundamental to our
society. For this reason, human rights laws are given broad and liberal
interpretations so as better to achieve their goals (Ontario Human Rights
Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, at pp. 546-47; Canadian
National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1
S.C.R. 1114, at pp. 1133-36; Robichaud v. Canada (Treasury Board),
[1987] 2 S.C.R. 84, at pp. 89-90). As this Court has affirmed, “[t]he Code is quasi-constitutional legislation that attracts a generous
interpretation to permit the achievement of its broad public purposes” (McCormick, at para. 17). In light of this, courts must favour interpretations that align with
the purposes of human rights laws like the Code rather than adopt narrow or
technical constructions that would frustrate those purposes (R. Sullivan, Sullivan
on the Construction of Statutes (6th ed. 2014), at §§19.3 to 19.7.
[32]
That said, “[t]his interpretive approach does not
give a board or court license to ignore the words of the Act in order to
prevent discrimination wherever it is found” (University
of British Columbia v. Berg, [1993] 2 S.C.R. 353,
at p. 371). It is for this reason that our interpretation of s. 13(1)(b) must
be grounded in the text and scheme of the statute and reflect its broad
purposes.
A.
The Text of Section 13(1)(b)
[33]
The language of the Code provides the
first indicator that we must adopt the broad interpretation of s. 13(1)(b)
favoured by the Tribunal. For convenience, I will set out again s. 13 of the
Code:
13 (1) A
person must not
(a)
refuse to employ or refuse to continue to employ a person, or
(b)
discriminate against a person regarding employment or any term or
condition of employment
because of the
race, colour, ancestry, place of origin, political belief, religion, marital
status, family status, physical or mental disability, sex, sexual
orientation, gender identity or expression, or age of that person or because
that person has been convicted of a criminal or summary conviction offence
that is unrelated to the employment or to the intended employment of that
person.
|
[34]
The place to start is with the term “person” in
the first line of s. 13(1). In its ordinary meaning, the term “person”
generally refers to a human being. In the context of the Code, it also defines
the class of actors against whom the prohibition in s. 13(1)(b) applies. The
ordinary meaning of “person” is broad; certainly, it encompasses a broader
range of actors than merely any person with economic authority over the
complainant. It is significant that the Legislature chose to prohibit
employment discrimination by any “person”. Had it intended only to prohibit
employment discrimination by employers — or some other narrow class of
individuals — it could easily have done so by using a narrower term than
“person”.
[35]
To this end, I note that s. 1 of the Code
provides the following inclusive definition:
1 In
this Code:
…
“person” includes
an employer, an employment agency [a person who undertakes, with or without
compensation, to procure employees for employers or to procure employment for
persons], an employers’ organization [an organization of employers formed for
purposes that include the regulation of relations between employers and
employees], an occupational association [an organization, other than a trade
union or employers’ organization, in which membership is a prerequisite to
carrying on a trade, occupation or profession] and a trade union [an
organization of employees formed for purposes that include the regulation of
relations between employees and employers];
|
[36]
Although the Code enumerates various
individuals and entities who come within the definition of “person”, the
definition in s. 1 is not exhaustive. Because the definition “includes” these
individuals and entities, it is explicitly not limited to them. In my view, the
Code provides additional meanings to the word “person” that, for
the purposes of the Code’s operation, supplement the ordinary meaning of the
word. In this sense, Mr. Schrenk is a “person” within the word’s ordinary
meaning; a corporate employer, such as Clemas, is a “person” within the word’s
supplemental meaning as clarified by s. 1 of the Code.
[37]
Next, the words “regarding employment” are
critical because they delineate the kind of discrimination that s. 13(1)(b)
prohibits. Initially, I note that “regarding” is a term
that broadly connects two ideas. In this case, the discrimination at
issue must be “regarding” employment in that it must be related to the
employment context in some way. This interpretation aligns with earlier
decisions of this Court concerning workplace discrimination under various human
rights statutes. In Robichaud, for example, Justice La Forest defined
the terms “in the course of employment” in s. 7(b) of the Canadian Human
Rights Act, S.C. 1976-77, c. 33, as meaning “work- or job-related” and “as
being in some way related or associated with the employment” (pp. 92 and 95).
This broad interpretation was also adopted by Chief Justice Dickson in Janzen v. Platy Enterprises Ltd., [1989]
1 S.C.R. 1252, at p. 1293, with regard to the terms “in respect of employment”
under s. 6(1)(a) of the Manitoba Human Rights Act, S.M. 1974, c. 65.
According to Chief Justice Dickson, the difference between the words “in the course of employment” and “in respect of employment” was not
significant (p. 1293). Any difference between those words and the words “regarding
employment” is equally negligible.
[38]
Based on my reading of the Code, the term
“regarding employment” does not solely prohibit discrimination within
hierarchical workplace relationships. If this were the case, then the words
discrimination “regarding employment” would essentially mean discrimination “by
employers or workplace superiors”. In my view, s. 13(1)(b) does not restrict
who can perpetrate discrimination. Rather, it defines who can suffer employment
discrimination. In this way, it prohibits discriminatory conduct that targets employees
so long as that conduct has a sufficient nexus to the employment context. Determining
whether conduct falls under this prohibition requires a contextual approach
that looks to the particular facts of each claim to determine whether there is
a sufficient nexus between the discrimination and the employment context. If
there is such a nexus, then the perpetrator has committed discrimination
“regarding employment” and the complainant can seek a remedy against that individual.
[39]
By contrast, the Chief
Justice proposes that, while s. 13(1)(b) is meant “to cover all forms of
workplace discrimination,” its scope is limited to targeting “only those
responsible for intervening and halting the events in question” (para. 123
(emphasis in original)). She writes that “[t]he
‘employment’ that is the subject of the protection accorded by s. 13(1)(b) is
defined in terms of the relationship between the complainant and the employer,
master or principal” (para. 109). In this sense, she proposes a narrow relational
approach to the words “regarding employment,” wherein discrimination, as
contemplated by s. 13(1)(b), can only be the responsibility of certain
individuals within the employment relationship — namely, employers or workplace
superiors.
[40]
I would reject this approach for two reasons.
First, while I agree that the term “employment” under the Code connotes,
inter alia, a relationship between an employer and an employee, it does
not follow that discrimination “regarding employment” must be perpetrated by
someone within that relationship. Indeed, it would be unduly formalistic
to assume that the only relationship that can impact our employment is that
which we share with our employer. Other workplace relationships — those we
share with our colleagues, for example — can be sources of discrimination
“regarding employment” despite the fact that it is only our employer who
controls our paycheck.
[41]
Second, the Chief Justice’s approach to the
words “regarding employment” is necessarily premised on a narrow view of how
power is exercised in the workplace. The premise, in my view, is the following:
as the only relationship defined by an imbalance of power is that shared
between employer and employee, it is only the employer who is in a
position to discriminate “regarding employment”. This power is essentially
economic in character. As the employer controls the economic benefits and
conditions of employment, only the conduct of the employer can constitute
discrimination “regarding employment”.
[42]
Respectfully, this fails to capture the reality
of how power is exercised in the workplace. For one, non-employers can exercise
economic power over employees. A regular patron at a restaurant, for example,
can exercise economic coercion over a server through tips. If the
exercise of economic power is central to the concept of discrimination
“regarding employment”, then this relationship, too, should fall within its
scope.
[43]
More importantly, however, economics is only one
axis along which power is exercised between individuals. Men can exercise
gendered power over women, and white people can exercise racialized power over
people of colour. The exploitation of identity hierarchies to perpetrate
discrimination against marginalized groups can be just as harmful to an
employee as economic subordination. Indeed, the statutory purposes listed in
the Code expressly extend beyond removing barriers to “economic”
participation in society and include removing “social, political and cultural”
barriers as well (s. 3(a)).
[44]
Admittedly, these examples are not limited to
the employment context, but they are exacerbated in the employment context
where a complainant is particularly vulnerable. This is because employees, in
the context of their work, are a captive audience to those who seek to
discriminate against them. Certain passages of the Court of Appeal’s reasons
reflect this point. At para. 33, Willcock J.A. purports to distinguish
discrimination “regarding employment” from “thoughtless comments made by those
[we] encounter in day-to-day life” on the basis that the latter “may be avoided
on the street without fear of employment-related economic consequences”. That
may be so, but it only highlights the unique vulnerability of the employment context.
Whether a server is harassed by the restaurant owner or the bar manager, by a
co-worker, or by a regular and valued patron, the server is nonetheless being harassed
in a situation from which there is no escape by simply walking further along
the street.
B.
The Scheme of the Code
[45]
The requirement to read the legislative text
“harmoniously with the scheme of the Act” reinforces the broad interpretation
of s. 13(1)(b) I propose (Driedger, at p. 87). Guided by the modern principle,
courts must not construe particular provisions in isolation; rather, individual
provisions must be considered in light of the act as a whole, with each
provision informing the meaning given to the rest (see Sullivan, at
§13.3). This rule ensures that statutes are read as coherent legislative
pronouncements. In this regard, “[i]t is presumed that the legislature avoids
superfluous or meaningless words, that it does not pointlessly repeat itself or
speak in vain” (ibid., at §8.23).
[46]
This presumption must play a role in our
interpretation so as to ensure that no provision of the Code is “interpreted so as to render it mere surplusage” (R. v. Proulx, 2000 SCC 5, [2000] 1
S.C.R. 61, at para. 28). Yet this is precisely the result
if we adopt the interpretation proposed by Mr. Schrenk. This is because s.
13(1)(b) contains two disjunctive prohibitions: the
first refers to discrimination regarding “employment”; the second refers to
discrimination regarding “any term or condition of employment”. In my view,
this suggests that the former targets discrimination against employees
generally whereas the latter targets discrimination by employers specifically,
given that only employers control the terms and conditions of employment. To
limit discrimination “regarding employment” to circumstances where the employer
makes enduring discrimination a “condition” of employment — whether through his
own action or through his inaction in the face of discrimination by a third
party — would arguably render “regarding employment” redundant with
discrimination “regarding any term or condition of employment” contrary to the
presumption against redundancy (Code, s.13(1)(b)). Although this conclusion is
not decisive in itself, it reinforces the broad reading I propose.
[47]
Considering the patterns of expression in the
Code further reinforces the interpretation of s. 13(1)(b) as applying
beyond the confines of employer-employee relationships. In particular, where
the Code seeks to limit the class of actors against whom a particular
prohibition applies, it employs specific language rather than barring a
“person” from engaging in discriminatory conduct. For example, s. 12 of the
Code expressly limits the category of actors who can perpetrate wage
discrimination to employer[s]”. Similarly, s. 14 specifically bars “trade union[s], employers’ organization[s] or occupational
association[s]” from discriminating in relation to various aspects of union
membership. The contrasting use of the general term “person” with these
specific terms suggests that the prohibition against discrimination “regarding
employment” found in s. 13(1)(b) applies to more than just employers. With
respect, I do not share the view of the Chief Justice that the word “person” in
s. 13 “neither expands nor limits the ambit of the section” (para. 110). It
seems to me irreconcilable with the fact that, when the Legislature sought to
limit the applicability of a prohibition to “employers”, it did so explicitly.
[48]
Finally, the structure of the Code supports
an approach that views employment as a context requiring remedy against
the exploitation of vulnerability rather than as a relationship needing
unidirectional protection. According to the Chief Justice, the scheme of the
Code reflects an intent to protect two things: first, specific
relationships — namely, those shared by patrons and business owners (s. 8),
landlords and tenants (s. 10), and employers and employee (s. 13) — and second,
public communications — i.e. discriminatory publication (s. 7) and job postings
(s. 11). In my view, however, a contextual lens better captures the scheme of
ss. 7 to 14 because it provides a complete explanation for the underlying logic
of these sections of the Code. All of these provisions capture contexts of
vulnerability in which “discrimination” (defined in s. 1 as applying to all of
these contexts) may arise. This includes ss. 7 and 11. Discriminatory
publications are prohibited by s. 7, not because they are public per se
but because minority groups are particularly vulnerable to hate speech in the
context of publication. The same goes for the context of discriminatory
employment advertisements (s. 11), which, too, are publicly disseminated.
[49]
By contrast, the Chief Justice says the scheme
of ss. 7 to 14 targets two things: certain relationships and public
communications. Regarding the latter, she reasons that the Code was “not
intended to govern private acts of discrimination between individuals” (para.
117). But this conflicts with the relationships she concedes are targeted by
the Code. Interactions in the accommodation (s. 8), property (s. 9), tenancy
(s. 10), fair wages (s. 12) and employment (s. 13) contexts are all “private”
in that they do not involve the state and can occur inconspicuously. Viewing
the Code’s scheme harmoniously, then, requires understanding ss. 7 to 14 as
contexts of vulnerability and not as exclusively public acts of discrimination
(ss. 7 and 11) when the Code undoubtedly targets private acts as well (ss. 8 to
10, 12 and 13).
C.
The Purposes of the Code
[50]
The modern principle of interpretation requires
that courts approach statutory language in the manner that best reflects the
underlying aims of the statute. This follows from the obligation to interpret
the words of an Act harmoniously with the object of the Act and the intention
of Parliament. As Professor Sullivan notes, “[i]n so far as the language of the
text permits, interpretations that are consistent with or promote legislative
purpose should be adopted, while interpretations that defeat or undermine
legislative purpose should be avoided” (Sullivan, at §9.3).
[51]
The clear statement of purpose set out in the
Code must guide our interpretation of s. 13(1)(b):
3 The purposes of this Code are as follows:
(a)
to foster a society in British Columbia in which there are no impediments to
full and free participation in the economic, social, political and cultural
life of British Columbia;
(b)
to promote a climate of understanding and mutual respect where all are equal
in dignity and rights;
(c)
to prevent discrimination prohibited by this Code;
(d)
to identify and eliminate persistent patterns of inequality associated with
discrimination prohibited by this Code;
(e)
to provide a means of redress for those persons who are discriminated against
contrary to this Code.
|
[52]
This sets out an ambitious aim that supports an
expansive and not a restrictive approach to the terms “regarding
employment” in s. 13(1)(b). Indeed, nothing in the stated purposes of the Code
suggests limiting the application of s. 13(1)(b) to formal employment
relationships or to those analogous to employment by virtue of the economic
control and dependency between the parties. Nor do the stated purposes suggest
restricting the operation of the legislative scheme to remedying the potential
discrimination that can arise via economic power imbalances in the workplace
while leaving other types of discriminatory harassment to persist unabated.
[53]
A nuanced understanding of discrimination
underpins the conclusion that one of the purposes of s. 13(1)(b) is to protect
employees from the indignity of discriminatory conduct in the workplace.
Admittedly, decisions relating to hiring, promotion, discipline, and
termination — should they be based on a protected characteristic — are
all obvious means by which those with formal authority can discriminate against
employees. But it would be superficial to conclude that employers and other
superiors are the only ones who can discriminate “regarding employment”. While
discrimination by one’s employer is particularly insidious for the reasons
identified by the Court of Appeal — in that it exploits an economic power
imbalance — other forms of conduct can amount to discrimination “regarding
employment” in the absence of such economic power.
[54]
I add that the Code is not limited to the
purpose of preventing discrimination. It also aims to “promote
a climate of understanding and mutual respect where all are equal in dignity
and rights” and to “provide a means of redress for those persons who are
discriminated against contrary to this Code” (s. 3(b) and (e)). The Chief Justice’s interpretation of the Code is at odds
with these aims because it places responsibility for protecting human rights
exclusively on those who wield formal authority in the employment relationship.
It also risks leaving the victims of discrimination without a remedy in many
situations. Under a narrow approach, the employer would be exclusively
responsible for ensuring a discrimination-free workplace. In other words, if
you suffer discrimination at the hands of a colleague, your only remedy under
the Code would lie against your employer. This would oblige your employer to
intervene by disciplining the perpetrator or terminating his or her employment,
for example, but it would not allow you to seek a remedy against the
perpetrator directly.
[55]
This narrow reading allegedly follows from the
fact that discrimination is only “regarding employment” when it is perpetrated
— or, at the very least, tolerated — by the employer. As the employer is the
only actor with formal power over the employment relationship, only the
employer can be held accountable for its failure to prevent or redress
discrimination. This is not a problem for the Chief Justice, who argues that
“there will always be an entity in any work context that is responsible for
ensuring that workers enjoy a discrimination-free environment” (para. 123). It
is for this reason that the Chief Justice concludes that s. 13(1)(b) only
“trains its regulatory guns on those responsible for intervening and halting
the events in question” (para. 123). Respectfully, this narrow focus misses the
mark set by the Code’s remedial purposes (and, in the context of employment
discrimination, ignores how the Code “trains its regulatory guns” on a “person”
and not “those responsible for intervening” (s. 13(1)). For instance, what can
you do when your employer has no disciplinary authority over the perpetrator?
As in this case, what happens when the perpetrator is not employed by the same
employer? Based on the narrow reading, the individual perpetrator evades
responsibility under s. 13(1)(b) and the complainant is left without a remedy.
[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.
[57]
The following example highlights the practical
consequences of adopting a narrow approach that focuses solely on
discrimination by employers. Consider an employee who
endures years of discriminatory harassment at the hands of a co-worker who
commits that harassment covertly, such that the employer is unaware of it
despite exercising diligent supervision. Under the narrow approach, this may
not be discrimination “regarding employment” as the employer is unaware of the
discrimination and thus may not be faulted for not intervening. A perverse
consequence flows from this: as long the employer acted with reasonable
diligence, the Tribunal may find that the complainant never suffered
discrimination “regarding employment” for the period leading up the moment when
he or she finally musters the courage to report the years of abuse by their
co-worker.
[58]
The narrow reading leaves such an employee with
limited remedies. Once alerted to the discriminatory conduct, an employer will
presumably discipline the co-worker who has harassed the complainant for
multiple years and may even terminate their employment. But the Tribunal could
go further. The Tribunal can, like the employer, order that the harasser cease
his or her discriminatory behaviour (Code, s. 37(2)(a)), but it can also
order the harasser to “ameliorate” their discriminatory harm (s. 37(2)(c)(i));
order the harasser to pay compensation to the complainant
(s. 37(2)(d)(iii)); and declare the conduct discriminatory, which can have
symbolic significance (s. 37(2)(b)). These remedies go beyond those available
to the employer and further the purposes of the Code.
[59]
In the end, a relational approach leaves
complainants with access to too few remedies and narrows the range of actors
who can be held accountable for their conduct. The unfortunate consequence of
this is that individual perpetrators like Mr. Schrenk may be immunized from
liability before the Tribunal simply because they do not share a common
employer with the victim of their harassment. The contextual approach I
propose, by contrast, gives employees greater scope to obtain remedies before
the Tribunal. This aligns with the remedial purposes of the Code. Insofar as
both the relational and the contextual interpretations of “regarding
employment” are plausible, the interpretive approach set out in our
jurisprudence relative to human rights laws favours the more generous reading.
D.
The Legislative History of Section 13(1)(b)
[60]
It is well established that the legislative
history of statutes can be relied on to guide the interpretation of statutory
language (Gravel v. City of St-Léonard, [1978] 1 S.C.R. 660; see also R.
v. Ulybel Enterprises Ltd., 2001 SCC 56, [2001] 2 S.C.R. 867, at para. 33).
The legislative evolution of an enactment forms part of the “entire context” to
be considered as part of the modern approach to statutory interpretation (Merk
v. International Association of Bridge, Structural, Ornamental and Reinforcing
Iron Workers, Local 771, 2005 SCC 70, [2005] 3 S.C.R. 425, at para.
28). In this case, the legislative history of s. 13 adds support to the broad
interpretation of the scope of s. 13(1)(b).
[61]
The legislative history of the Code is
particularly instructive because it suggests that the British Columbia
Legislature has incrementally extended the range of parties who are prohibited
from discriminating regarding employment. In 1969, the proscription against
discrimination “in regard to employment” in what was then the Human Rights
Act, S.B.C. 1969, c. 10, applied only to an
“employer” (s. 5). The term “employer” was defined as including “every person,
firm, corporation, agent, manager, representative, contractor, or
sub-contractor having control or direction of, or responsible, directly or
indirectly, for, the employment of any employee” (s. 2(d)). In 1973, the
definition of employer was removed, and the definition of employment was added
(Human Rights Code of British Columbia Act, S.B.C. 1973, c. 119, s. 1).
At this point, employers remained the only parties who were specifically
prohibited from discrimination regarding employment. That changed in 1984 when
the scope of the prohibition was expanded to apply to a “person or anyone
acting on his behalf” (Human Rights Act, S.B.C. 1984, c. 22, s. 8).
[62]
A pivotal amendment came in 1992, when the
legislation was amended to prohibit a “person” from discriminating against
another person “with respect to employment” (Human Rights Amendment Act,
1992, S.B.C. 1992, c. 43, s. 6). In 1996, that language was revised to
“regarding employment” (s. 13(1)(b)) with the entry into force of the Code,
which remains in force to this day. This history shows an expansion of the parties
who are subject to the Code’s remedies for discrimination, from “every person .
. . having control or direction of . . . the employment of any employee” to a
“person”.
[63]
While the legislative history of the Code is not
determinative, it is highly indicative of the fact the British Columbia
Legislature intended to expand the scope of s. 13(1)(b) when it removed the
word “employer” and replaced it with the much broader term “person”. This
conclusion is reinforced by the presumption that legislative change is
purposeful (Sullivan, at §23.22). The evolution of the language of s. 13(1)(b)
indicates an intention to expand, rather than constrain, the responsibility for
ensuring a discrimination-free workplace to all who are in a position to
discriminate regarding another’s employment.
E.
The Relevance of McCormick
[64]
The interpretation proposed by Mr. Schrenk and
adopted by the Court of Appeal states that the words “regarding employment”
limit the scope of s. 13(1)(b) to relationships defined by control (on the part
of the perpetrator of discrimination) and dependency (on the part of the
complainant). In other words, the control of the perpetrator and the
correlating dependency of the complainant are necessary to bring the complaint
within the ambit of s. 13(1)(b). This limitation, it is argued, flows from the
fact that it is only the person who controls the complainant’s employment who
is in a position to discriminate with regard to that employment. It follows
that remedies under s. 13 exist solely against those in positions of formal or
economic power over the complainant, namely their employer or superiors. For
this reason, Mr. Schrenk relies on the factors in McCormick to determine
whether he was in a relationship of control and dependency with Mr.
Sheikhzadeh-Mashgoul and thus determine whether their relationship falls under
the scope of s. 13(1)(b).
[65]
Reliance on McCormick in this way is
misplaced. The interpretation of “employment relationship” articulated in McCormick,
at para. 23, was used to determine whether the person who allegedly suffered
discrimination was in an employment relationship for the purpose of the Code.
In other words, McCormick identified who qualifies for the protection of
s. 13 by virtue of being an employee. Once it is determined that a
complainant is an employee, however, McCormick does not address the
question of who may perpetrate discrimination regarding employment.
[66]
The Chief Justice appears to adopt a similar
view as Mr. Schrenk when she states that McCormick “confirmed that the nature of the relationship between complainant
and respondent is dispositive of whether s. 13(1)(b) applies” (para. 130). With
respect, the contextual approach I propose does not disregard that relational
inquiry; it simply applies that inquiry in the same manner as the Court did in McCormick:
to the prospective complainant. McCormick does indeed require a
relational analysis but only in respect of who can suffer employment
discrimination and not who can perpetrate it. McCormick, at
paras. 45-46, holds that someone who is not an employee under the Code
cannot suffer employment discrimination. It does not hold that only
employers can perpetrate employment discrimination. This follows from the fact
that it is the vulnerability of being an employee that warrants special
legislative protection under the Code. The contextual approach I propose is
consistent with McCormick in that it limits the protection of s.
13(1)(b) to employees.
F.
Conclusion on the
Scope of Section 13(1)(b)
[67]
Reading the Code in line with the modern
principle of statutory interpretation and the particular rules that apply to
the interpretation of human rights legislation, I find that s. 13(1)(b)
prohibits discrimination against employees whenever that discrimination has a
sufficient nexus with the employment context. In determining whether
discriminatory conduct has such a sufficient nexus, the Tribunal must conduct a
contextual analysis that considers all relevant circumstances. Factors
which may inform this analysis include: (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. These factors are not exhaustive
and their relative importance will depend on the circumstances. In my view,
this contextual interpretation furthers the purposes of the Code by
recognizing 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 a harassing co-worker.
[68]
With this in mind, I do not dispute that whether
discrimination occurs “in the workplace” or is “related to or associated with
[the complainant’s] employment” may be relevant to characterizing that
discrimination as being “regarding employment” (Justice Abella’s reasons, at
para. 74). But I am of the view that such findings alone — without a sufficient
nexus to the employment context — could not constitute employment
discrimination.
[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.
VII.
Disposition
[70]
I would allow the appeal and affirm the
Tribunal’s decision. As no party sought costs, I would not award costs.
The following are the reasons delivered by
Abella J. —
[71]
Mohammedreza Sheikhzadeh-Mashgoul is a civil
engineer who was subjected to derogatory comments and emails regarding his
place of origin, religion, and sexual orientation from Edward Schrenk, who
worked for another employer on the same construction site. Mr.
Sheikhzadeh-Mashgoul filed a complaint with the British Columbia Human Rights
Tribunal against Mr. Schrenk and his employer, Clemas Contracting Ltd.,
alleging employment discrimination contrary to s. 13(1)(b) of the Human
Rights Code, R.S.B.C. 1996, c. 210.
[72]
Mr. Schrenk and his employer brought an
application to dismiss the complaint under s. 27(1)(a)[1] of the Code on the basis that the Tribunal did not have
jurisdiction over the claim. They argued that because Mr. Schrenk was not in a
position of authority over Mr. Sheikhzadeh-Mashgoul, the conduct could not
constitute discrimination “regarding employment” within the meaning of s.
13(1)(b).
[73]
The issue in this case is whether employment
discrimination under the Code can be found where the harasser is not in
a position of authority over the complainant. I have had the benefit of reading
Justice Rowe’s reasons and agree with his conclusion, but, with respect, would
approach it somewhat differently. It seems to me that what the analysis
in this case requires is that we consider the meaning of employment
discrimination in a way that is consistent with, and emerges from, our
well-settled human rights principles, and not just the particular words of
British Columbia’s Code.
[74]
Applying these principles leads, in my view, to
the conclusion that an employee is protected from discrimination related to or
associated with his or her employment, including humiliating and degrading
harassment in the workplace, whether or not he or she occupies a position of
authority. The Tribunal, as a result, has jurisdiction to hear the complaint.
Background
[75]
Mr. Sheikhzadeh-Mashgoul immigrated to Canada
from Iran and is a Muslim. He works for the engineering firm Omega and
Associates Engineering Ltd., which was hired by the municipality of Delta to
act as consulting engineers on a road improvement project. Mr.
Sheikhzadeh-Mashgoul was responsible for supervising the contracting work done
by Clemas, which employed Mr. Schrenk as a site foreman.
[76]
Mr. Sheikhzadeh-Mashgoul complains of numerous
offensive comments made by Mr. Schrenk during the project regarding his place
of origin, religion, and sexual orientation. On learning of Mr.
Sheikhzadeh-Mashgoul’s religion and place of origin, Mr. Schrenk asked “You are
not going to blow us up with a suicide bomb, are you?” He shoved Mr.
Sheikhzadeh-Mashgoul and called him a “fucking Muslim piece of shit” in the
presence of other Clemas employees. When Mr. Sheikhzadeh-Mashgoul went to call
his supervisor following a heated exchange with Mr. Schrenk, he was asked, “Are
you going to call your gay friend?”
[77]
Mr. Sheikhzadeh-Mashgoul met with
representatives of Omega, Clemas, and Delta, including Mr. Schrenk, where it
was agreed that if the behaviour continued, Mr. Schrenk would be removed from
the site. Mr. Schrenk did continue, telling Mr. Sheikhzadeh-Mashgoul in another
incident, “Go back to your mosque where you came from.” Even after he was
removed from the job site, Mr. Schrenk continued to harass Mr.
Sheikhzadeh-Mashgoul by sending derogatory emails. As a result, Clemas decided
to terminate Mr. Schrenk’s employment.
[78]
Mr. Sheikhzadeh-Mashgoul filed a complaint with
the Tribunal against Mr. Schrenk, Clemas, and Delta, alleging employment
discrimination. He later withdrew the claim against Delta. Mr. Schrenk and
Clemas both applied to dismiss the complaint pursuant to s. 27(1)(a), arguing
that the Tribunal lacked jurisdiction.
[79]
In a decision by Walter Rilkoff, the Tribunal
found that there was jurisdiction over the complaint. In the Tribunal’s view,
the prohibition against employment discrimination applies to “persons”, and is
not limited to those in a direct employment relationship with or position of
control over the complainant.
[80]
At the Supreme Court of British Columbia, Brown
J. dismissed Mr. Schrenk’s application for judicial review. In her view, the
issue was not whether Mr. Sheikhzadeh-Mashgoul was in an employment
relationship with Mr. Schrenk and Clemas, but whether he had experienced
discrimination regarding his employment. To interpret the Code more
narrowly would be contrary to common sense and current employment circumstances.
[81]
The Court of Appeal for British Columbia
unanimously allowed Mr. Schrenk’s appeal ((2016), 400 D.L.R. (4th) 44). It
disagreed with the Tribunal’s analysis, concluding instead that employment
discrimination can only occur if someone is in a position of authority and can
force the complainant to endure that conduct as a condition of employment.
Without that authority, the Tribunal may “consider whether the complainant’s
employer played some role in allowing the conduct” but has no jurisdiction over
the individual wrongdoer.
[82]
In my respectful view, there is no requirement
that a harasser be in a position of authority before he or she is subject to
the jurisdiction of the Tribunal. Mr. Schrenk relies on McCormick v. Fasken
Martineau DuMoulin LLP, [2014] 2 S.C.R. 108, to argue that a
relationship of control and dependency between the complainant and respondent
is determinative.
[83]
McCormick was
addressing whether employment discrimination could be found where the claimant
himself designed and agreed to the contractual employment term complained of.
In the harassment context, the direct analogy would be a harasser claiming to
be the victim of a discriminatory workplace where it is his own conduct that
has poisoned that workplace. McCormick did not purport to limit the
jurisdiction of the Tribunal only to situations where there is discriminatory
treatment by someone in a position of authority.
[84]
I agree with the Tribunal and the Supreme Court
of British Columbia that the Tribunal has jurisdiction over the complaint.
Analysis
[85]
It is well-established that the Code has
a quasi-constitutional character and should be interpreted generously to give
effect to its broad public purposes (Winnipeg School Division No. 1
v. Craton, [1985] 2 S.C.R. 150; Ontario Human Rights Commission v.
Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, at p. 547). These purposes
include protecting individuals from adverse treatment based on protected group
characteristics; in short, identifying and eliminating discrimination (Robichaud
v. Canada (Treasury Board), [1987] 2 S.C.R. 84, at p. 92; McCormick,
at para. 18). This aspirational goal is set out in s. 3[2] of the Code and enforced in the employment context through
s. 13(1), which states:
Discrimination in
employment
13(1) A person must not
(a)
refuse to employ or refuse to continue to employ a person, or
(b)
discriminate against a person regarding employment or any term or condition of
employment
because
of the race, colour, ancestry, place of origin, political belief, religion,
marital status, family status, physical or mental disability, sex, sexual
orientation, gender identity or expression, or age of that person or because
that person has been convicted of a criminal or summary conviction offence that
is unrelated to the employment or to the intended employment of that person.
[86]
This case engages s. 13(1)(b). The starting
point for the discrimination analysis is the prima facie test for
discrimination set out in Moore v. British Columbia (Education), [2012]
3 S.C.R. 360, a case involving discrimination in the provision of educational
services to children with learning disabilities. This test was reaffirmed in
the employment context in Stewart v. Elk Valley Coal Corp., [2017] 1
S.C.R. 591. In this appeal, therefore, to establish a prima facie case of
discrimination, Mr. Sheikhzadeh-Mashgoul must demonstrate that he has a
characteristic protected under the Code, has experienced an adverse
impact “regarding employment”, and that the protected characteristic was a
factor in the adverse impact (Moore, at para. 33).
[87]
The words “regarding employment” have been
broadly construed since this Court’s decision in Robichaud. There, La
Forest J. interpreted the phrase “in the course of employment” under the Canadian
Human Rights Act, S.C. 1976-77, c. 33, s. 7(b), to mean “work- or
job-related”, or “in some way related or associated with the employment” (pp.
92 and 95). The same meaning was given to the words “in respect of employment”
in Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252, at p. 1293.
It applies equally here. The question, then, is whether Mr.
Sheikhzadeh-Mashgoul has experienced discrimination, namely an adverse impact
related to or associated with his employment.
[88]
As is clear from this test, the discrimination
inquiry is concerned with the impact on the complainant, not the intention or
authority of the person who is said to be engaging in discriminatory conduct.
This emphasis on impact, not intention, was the basis in Stewart for
McLachlin C.J. declining to add a requirement of stereotypical or arbitrary
decision-making to the prima facie test (para. 45).
[89]
Cases of discrimination involving harassment in
the workplace are also informed by this focus on impact. In Janzen,
sexual harassment was defined non-exhaustively to include “unwelcome conduct of
a sexual nature that detrimentally affects the work environment or leads to
adverse job-related consequences for the victims of the harassment” (p. 1284).
The key is whether that harassment has “a detrimental effect on the
complainant’s work environment” (Michael Hall, “Racial Harassment in
Employment: An Assessment of the Analytical Approaches” (2006-2007), 13 C.L.E.L.J.
207, at p. 212).
[90]
The purpose of s. 13(1)(b) is to protect
employees from the indignity of discriminatory conduct, verbal or otherwise, in
a workplace. Discrimination can and does occur in the absence of an economic
power imbalance. It cannot depend on technical lines of authority which may end
up defeating the goals of human rights legislation. While employment
discrimination is often, not surprisingly, focused on the ability of employers
to subject complainants to discriminatory conduct as a condition of employment,
all individuals have the right to be protected from discrimination in
the workplace, including those in a position of authority.
[91]
This is reflected in how British Columbia’s
legislation has expanded liability for employment discrimination beyond simply
employers and their agents. Section 13(1)(b), which now prohibits employment
discrimination by a “person”, is the result of a series of legislative
amendments. In 1969, only an “employer” was prohibited from employment
discrimination (Human Rights Act, S.B.C. 1969, c. 10, s. 5). This was
extended in 1984 to a “person or anyone acting on his behalf” (Human Rights
Act, S.B.C. 1984, c. 22, s. 8). In 1992, it was expanded again to prohibit
a “person” from engaging in employment discrimination (Human Rights
Amendment Act, 1992, S.B.C. 1992, c. 43, s. 6). This, it seems to me, is a
clear indication that the legislature wanted to prevent employment
discrimination not only from “employers”, but from any person in the
workplace.
[92]
This approach is responsive to the realities of
modern workplaces, many of which consist of diverse organizational structures
which may have different employers and complex work relationships. Prohibiting
all “persons” in a workplace from engaging in discrimination recognizes that
preventing employment discrimination is a shared responsibility among those who
share a workplace.
[93]
There is no doubt that employers have a special
duty and capacity to address discrimination, but this does not prevent
individual perpetrators of discriminatory conduct from also potentially being
held responsible, whether or not they are in authority roles. This is
especially so where the employer’s best efforts are inadequate to resolve the
issue or where, as here, the subject of the assault himself occupies a position
of some authority. The harasser’s degree of control and ability to stop the
offensive conduct is clearly relevant, but this goes to the factual matrix, not
to the jurisdiction of the Tribunal to hear the complaint.
[94]
Mr. Sheikhzadeh-Mashgoul has claimed
discriminatory harassment based on place of origin, religion, and sexual
orientation. The fact that Mr. Schrenk is not in a position of authority over
him does not deprive the Tribunal of jurisdiction under s. 13(1)(b) to
determine whether, based on the evidence, there has been discrimination.
[95]
The appeal is allowed and the conclusion of the
Tribunal that it had jurisdiction over the complaint, is restored. The parties
have agreed not to seek costs.
The reasons of McLachlin C.J. and Côté and
Brown JJ. were delivered by
The Chief Justice —
I.
Introduction
[96]
The question on this appeal is whether the
workplace discrimination prohibition in s. 13 of the British Columbia Human
Rights Code, R.S.B.C. 1996, c. 210, applies only to employer-employee or
similar relationships. The British Columbia Court of Appeal concluded that it
did. I agree. Accordingly, I would dismiss the appeal.
[97]
Section 13(1) of the Code provides:
13 (1) A person must not
(a) refuse to
employ or refuse to continue to employ a person, or
(b) discriminate against a person
regarding employment or any
term or condition of employment
because of the race, colour, ancestry,
place of origin, political belief, religion, marital status, family status,
physical or mental disability, sex, sexual orientation, gender identity or
expression, or age of that person or because that person has been convicted of
a criminal or summary conviction offence that is unrelated to the employment or
to the intended employment of that person.
[98]
The complainant, Mr. Sheikhzadeh-Mashgoul, was
working on a road improvement project for the Corporation of Delta, a
municipality in British Columbia, as the site representative for the consulting
engineers (Omega and Associates Engineering Ltd.). The respondent, Mr. Schrenk,
worked on the same project as the foreman for the lead contractor (Clemas
Contracting Ltd.). They worked on the same job site together, but were employed
by different employers. The allegations of discrimination involved racist and homophobic
statements made by Mr. Schrenk on the job site. The complainant reported the
harassment to his employer, Omega. Omega asked Clemas to remove Mr. Schrenk
from the job site, which it did. Soon after, Mr. Schrenk stopped working on the
project entirely. However, Mr. Schrenk continued to send the complainant
derogatory emails. When Clemas became aware of the emails, it terminated Mr.
Schrenk’s employment.
[99]
The complainant brought his complaint against
Mr. Schrenk, Delta and Clemas, however only the complaint against Mr. Schrenk
remains relevant. Mr. Schrenk applied to have the complaint dismissed without a
hearing under s. 27(1) of the Code, arguing, among other things, that there was
no employment relationship between him and the complainant. The British
Columbia Human Rights Tribunal concluded that the scope of s. 13 is broad and
is not limited to situations where there is an employment-like relationship,
giving it jurisdiction over the complaint: 2015 BCHRT 17. The British Columbia
Supreme Court dismissed Mr. Schrenk’s application for judicial review: 2015
BCSC 1342.
[100]
The British Columbia Court of Appeal reversed
these decisions: 2016 BCCA 146, 400 D.L.R. (4th) 44. It held that the Tribunal
had no jurisdiction over the complaint because Mr. Schrenk and the complainant
were not in an employment or employment-like relationship. Discrimination
“regarding employment” under s. 13(1)(b) requires the wrongdoer against whom
the claim is made to have power or authority over the complainant.
[101]
I agree. This case turns entirely on the
interpretation of s. 13(1)(b) of the Code. I conclude that the protection
provided by that provision focusses on the employment relationship — a
relationship between employer and employee or similar relationship. Section
13(1)(b) authorizes claims against those who are responsible for ensuring that
workplaces are free of discrimination. This conclusion is consistent with the
text, context and purpose of s. 13(1)(b), as well as with the jurisprudence.
II. Analysis
[102]
The question is whether the Tribunal’s
interpretation of s. 13(1) of the Code was correct.
[103]
To interpret a statutory provision like s.
13(1), the Court must consider the text or words of the provision; the
legislative and social context of the provision; and the purpose of the provision:
Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27. Prior court
decisions on the interpretation of the provision are always helpful. The
ultimate goal is to determine what the legislature intended. Human
rights legislation should be interpreted broadly in order to facilitate the
public-oriented objectives of such statutes: McCormick v. Fasken Martineau
DuMoulin LLP, 2014 SCC 39, [2014] 2 S.C.R. 108, at para. 17; New
Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc.,
2008 SCC 45, [2008] 2 S.C.R. 604, at paras. 65-69. Nevertheless, the
interpretation must still be rooted in the words of the relevant provisions: University
of British Columbia v. Berg, [1993] 2 S.C.R. 353, at p. 371.
A.
Text
[104]
The text of s. 13(1)(b), read as a whole,
supports the conclusion that the provision is intended to cover discrimination
perpetrated by an employer or a person in an employer-like relationship with
the complainant.
[105]
Section 13(1)(b) protects against discrimination
by a person against another regarding employment, on specified protected
grounds. The words “regarding employment” and “person” are critical.
[106]
Section 1 of the Code defines
“employment” and “person”.
“employment” includes the relationship of master and servant, master and apprentice
and principal and agent, if a substantial part of the agent’s services relate
to the affairs of one principal, and “employ” has a corresponding
meaning;
…
“person” includes an employer, an employment agency, an employers’
organization, an occupational association and a trade union;
[107]
The phrase in s. 13(1)(b) —
discrimination “regarding employment or any term or condition of employment” —
is at first blush broad enough to include any conduct relating to employment in
the workplace. This said, it is worth noting that the word chosen is not
“workplace” but “employment”. The former bears no connotation of a relationship
between an employer and employee, but the latter does.
[108]
Section 1 of the Code defines “employment” in
terms of relationships: “‘employment’ includes the relationship of master and
servant, master and apprentice and principal and agent, if a substantial part
of the agent’s services relate to the affairs of one principal . . . ”.
Moreover, although the definition begins with the term “includes”, which
suggests that what follows is not exhaustive, “employment” expressly does
not include the relationship of a particular principal and agent if a non-substantial
part of that agent’s services relate to the affairs of that principal. This
suggests that there is something about the nature or extent of responsibility
over work or the workplace that defines who can perpetrate discrimination
“regarding employment” for the purpose of s. 13(1)(b).
[109]
Reading the s. 1 definition of “employment” into
the phrase “regarding employment” in s. 13(1)(b), we
can rephrase it as follows: “regarding activity arising out of a relationship
of master and servant, master and apprentice and principal and agent, if a
substantial part of the agent’s services relate to the affairs of one
principal”. The “employment” that is the subject of the protection accorded by
s. 13(1)(b) is defined in terms of the relationship between the complainant and
the employer, master or principal. This makes sense. Employers, masters,
principals or their equivalents all have power and responsibility over the
workplace in which the complainant finds himself. If the provincial Legislature
had intended s. 13(1)(b) to allow claims against anyone at a workplace, it is
difficult to understand why it went to the trouble of using the word
“employment” instead of “workplace”, and then defining “employment” in terms of
the relationship between employer and employee, master and apprentice or
principal and agent, thereby confining it to situations where the employer or
its equivalent has control or power over the employee, apprentice or agent. The
separate inclusion of “regarding . . . any term or condition of employment” in
s. 13(1)(b) suggests that the Legislature wanted to target both behaviour
flowing out of the relationship between a person in authority and his or her
employee generally, as well as specific discrimination in the agreement that
establishes that relationship.
[110]
It is argued that the use of the word “person”
at the outset of s. 13(1) (“[a] person must not”) instead of “employer”,
“master” or “principal” signals that the Legislature intended the provision to
apply to circumstances beyond discrimination within the power of an employer,
master or principal. However, if one accepts that the words controlling the
ambit of the protection are “regarding employment” (i.e. regarding a matter
arising out of a relationship of or like that of master-servant), this argument
loses its force. The term “person” neither expands nor limits the ambit of the
section.
[111]
In summary, while the text or words of the
provision are not entirely clear, read as a whole, they suggest that the
Legislature was targeting discrimination committed directly or through inaction
by an employer, master, principal or similar against an employee in the course
of their relationship.
B.
Context
[112]
A contextual reading of s. 13(1) supports the
view that the Legislature was targeting discrimination arising out of an
employer-employee or analogous relationship.
[113]
In interpreting a statutory provision, one must
look at the legislative context — that is, how the
provision fits in and functions in the statutory scheme when considered
together with other provisions: see R. Sullivan, Statutory Interpretation,
(3rd ed. 2016), at pp. 173-79. Each provision is presumed to have a role to
play in the overall scheme. An interpretation of one provision that makes
another redundant or that conflicts with other provisions or the overall terms
of the statute strongly indicates that the legislature intended that the provision
be interpreted differently.
[114]
The Code covers a number of kinds of
discrimination, including discrimination by unions and associations (s. 14);
discriminatory publication (s. 7); and discrimination in tenancy premises (s.
10).
[115]
The first contextual consideration that presents
itself is the separate protection against discrimination by unions and
occupational associations in s. 14 of the Code. Discrimination by unions and
associations is, by definition, linked to the complainant’s work. If s.
13(1)(b) were interpreted so as to allow claims against anyone in the
workplace, most of s. 14 would be redundant. Conversely, if s. 13(1)(b) is
confined to claims between persons in an employer-employee or similar
relationship, the need for s. 14 becomes apparent. It is possible, of course,
that the Legislature intended partial or total redundancy, so it included
unions in a separate section simply to highlight that particular issue and
provide more detail, as it arguably did with wage discrimination in s. 12.
However, it is equally, if not more, plausible to conclude that the Legislature
did not consider discrimination by unions or similar groups to be covered by s.
13(1)(b), and went on to cover discrimination by those groups in s. 14.
[116]
More broadly, the Code makes a clear distinction
between private interactions between private individuals, which are generally
not covered, and designated classes of relationships, which are covered. The
scheme of the Code is to describe categories of general protections based on
relationships and/or activities, and to exclude interactions between private
individuals that might otherwise be caught. Thus, under s. 7 (discriminatory
publication), no complaint can be brought on the basis of a discriminatory,
though private, communication between individuals (s. 7(2)). And under s. 10
(discrimination in tenancy premises), no complaint can be brought with respect
to discriminatory conduct by someone choosing roommates (s. 10(2)(a)). Leaving
s. 13 aside, the remaining provisions address circumstances where such
exceptions are not needed because they are irrelevant: ss. 8 and 9 describe
commercial transactions, s. 11 describes communications that are public by
nature (job postings), s. 12 describes decisions that can only be taken by
employers (wage discrimination), and as noted, s. 14 addresses unions and
occupational associations. The scheme of the Code thus suggests that, where a
particular species of discrimination could be read to encompass private
interactions between private individuals, the drafter chose to include limiting
language so as to clearly indicate that the private sphere falls outside the
scope of the Code.
[117]
From this we can infer a general legislative
policy that ss. 7 to 14 of the Code were intended to apply to discrimination arising
out of certain classes of relationships or, in the case of ss. 7 and 11
specifically, discriminatory public communications. They were not intended to
govern private acts of discrimination between individuals in a general sense —
they were intended to address only the specific interactions they describe.
This supports the view that s. 13(1)(b) was never intended as a provision that
would enable claims against an individual on the basis of all of his or her
workplace interactions, unless those interactions have some bearing on
employment (defined as a relationship) rather than simply on work, writ large.
In provisions where the prohibition initially appears broad enough to catch
private communications or interactions between private citizens more generally
(e.g. ss. 7 and 10), specific exclusions are set out. No such exclusions
are present in s. 13(1)(b), simply because it was not intended to cover such
broad claims.
[118]
The scheme of the Code also supports the view
that the Legislature was concerned with power imbalances. The target of many of
the sections is someone who controls access to a service (s. 8), accommodation
(ss. 8 and 10), property and tenancy (ss. 9 and 10), fair wages (s. 12), or
membership in an association (s. 14). Rather than targeting all acts of
discrimination, the Legislature — when not specifically
addressing the harm of discriminatory public communications — narrowed its focus to discrimination by those in a position of
power over more vulnerable people. All of these examples reflect different
contexts in which discrimination can arise; this is why they are enumerated in
the Code. However, the Legislature went further to indicate the types of
relationships or communications that are of particular concern in these
contexts. These, therefore, inform the nature of claims under the Code.
[119]
Another difficulty is that, if s. 13(1)(b)
enables a claim against Mr. Schrenk on the basis of the emails he sent after he
was removed from the project and workplace, it is not clear how that provision
and s. 7(2) can be reconciled. When does a communication between individuals
who no longer work together become private?
[120]
Section 44(2) of the Code, which provides that
“[a]n act or thing done or omitted by an employee . . . of any person within
the scope of his or her authority is deemed to be an act or thing done or
omitted by that person”, confirms the Legislature’s intent to target
discrimination arising from the employment or equivalent relationship. It
makes employers and their equivalents respondents in workplace discrimination
claims. This is both consistent with the reading of s. 13(1)(b) I propose and
with the Court’s decisions in Robichaud v. Canada (Treasury Board), [1987]
2 S.C.R. 84, at pp. 91-96, and Janzen v. Platy Enterprises Ltd., [1989]
1 S.C.R. 1252, at pp. 1292-94, which, with respect, focus solely on the ambit
of the employer’s responsibility for the conduct of employees toward
others in the workplace. Section 44(2) suggests that concerns about workplace
control, systemic remediation, and ultimate responsibility animate such claims.
[121]
It is argued that the interpretation of s.
13(1)(b) should be informed by the general backdrop of workplace harassment,
which can come not only from employers, but from many sources. While this may
be true, the question at issue is whether we can infer that the Legislature
intended the provision to capture all claims against any person who engages in
workplace discrimination — whether predicated on the
existence of a relationship of power imbalance or not. A contextual reading of
the scheme and provisions of the Code suggests the latter was not the
Legislature’s intention.
C.
Purpose
[122]
Section 3(a) of the Code offers an
expansive objective — “to foster a society in British
Columbia in which there are no impediments to full and free participation in
the economic, social, political and cultural life of British Columbia”.
Paragraph (b) is also broad — “to promote a climate of
understanding and mutual respect where all are equal in dignity and rights”.
However, the remaining three objectives, which focus on discrimination,
inequality and redress, are expressly confined to measures found in the Code.
The purpose of the Code, accurately described, is to contribute to the
long-term goals set out in paras. (a) and (b) via the specific tools the Code
provides for combatting discrimination and inequality.
[123]
My reading of s. 13(1)(b) is consistent with
this objective. Section 13(1)(b) may be read as targeting workplace
discrimination that arises out of the employer-employee relationship or its
equivalents. It is meant to cover all forms of workplace discrimination
to which a worker is susceptible. However, it trains its regulatory guns on
those responsible for intervening and halting the events in question. Where
those responsible for guaranteeing discrimination-free workplaces fail to
intervene to prevent or correct discrimination, s. 13(1)(b) is engaged. Since
there will always be an entity in any work context that is responsible for
ensuring that workers enjoy a discrimination-free environment, this reading of
s. 13(1)(b) does not thwart the purpose of the Code.
[124]
It is argued that this interpretation of s.
13(1)(b) will leave victims of discrimination by their co-workers without a
remedy — a result that would be inconsistent with the
broad remedial purpose of statutes like the Code. This is not the case.
Interpreting s. 13(1)(b) as confined to employer-employee and equivalent
relationships may preclude claims under the Code against harassing co-workers.
But it does not preclude complaints against the entities responsible for
ensuring that the workplace is free of discrimination, like a common employer
or other individuals or organizations that bear responsibility for the
workplace in question.
[125]
An employee for whom leaving work is not an
option is not a “captive audience” (Justice Rowe’s reasons, at para. 67) for a
co-worker’s harassment. Her remedy is not to confront her co-worker, but to go
to the employer or person responsible for providing a discrimination-free
workplace. If the employer fails to remedy the discrimination, the employee can
bring a claim against the employer without fear of reprisal (Code, s. 43).
Where the employer fails to take appropriate steps to correct the
discrimination, the Tribunal may determine that the employer’s conduct itself
constitutes discrimination, giving the employee access to the full range of
remedies provided by the Code.
[126]
It is argued that harassment by or to a
passer-by on work premises should be covered by s. 13(1)(b). The answer is that
the Code does cover this harassment. If discrimination to a worker occurs and
the person responsible for protecting that worker (e.g. the employer) fails to
protect the worker, s. 13(1)(b) is engaged. This would also apply to a customer
harassing an employee, such as a patron harassing a server at a restaurant. Employers
have a duty to intervene, and if they do not, they may be held responsible
under s. 13(1)(b). If it is the customer who is harassed, she has recourse
under different provisions of the Code: ss. 8(1), 9 and 10(1).
[127]
It is also argued in this case that an
employment-based conception of s. 13(1)(b) provides Mr. Sheikhzadeh-Mashgoul
with no remedy against Mr. Schrenk directly in response to the emails Mr.
Schrenk sent after they no longer worked together. However, this result flows
from the explicit exclusion from protection of those who receive discriminatory
private communications under s. 7(2) of the Code. If a discriminatory email is
broadcast publicly, s. 7(1) would be engaged, but if the email remains private,
the Code is clear: it provides no remedy. To read s. 13(1)(b) to include such
emails when they were private would be to ignore the express language of the
Code.
[128]
Finally, it is suggested that confining s.
13(1)(b) to employment and employment-like relationships absolves
discriminators from direct responsibility for their conduct. This does not
mean, however, that discrimination will be allowed to flourish. Instead of casting
its net indiscriminately to allow claims against any individual who commits a
discriminatory act or utters a discriminatory word at a workplace, the
Legislature chose to focus on those responsible for maintaining a
discrimination-free workplace. Far from undermining the Code’s purpose, this
choice upholds it.
D.
Jurisprudential Consistency
[129]
An interpretation of s. 13(1)(b) predicated on
the responsibilities of employers and their equivalents is consistent with the
jurisprudence.
[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, [1999] 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.
III.
Conclusion
[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.
Appeal
allowed, McLachlin C.J. and
Côté and Brown JJ. dissenting.
Solicitor
for the appellant: British Columbia Human Rights Tribunal, Vancouver.
Solicitors
for the respondent: Fasken Martineau DuMoulin, Vancouver.
Solicitors
for the intervener the Canadian Association of Labour Lawyers: CaleyWray,
Toronto.
Solicitors
for the intervener the Canadian Construction Association: Torys, Toronto.
Solicitors
for the intervener the Community Legal Assistance Society: Moore Edgar
Lyster, Vancouver; Community Legal Assistance Society, Vancouver.
Solicitors
for the intervener West Coast Women’s Legal Education and Action Fund: Clea F.
Parfitt, lawyer, Vancouver; West Coast LEAF, Vancouver.
Solicitors
for the intervener the Retail Action Network: Underhill, Boies Parker,
Gage & Latimer, Vancouver; BC Public Interest Advocacy Centre, Vancouver.
Solicitors
for the interveners the Alberta Federation of Labour and the International
Association of Machinists and Aerospace Workers Local Lodge 99: Chivers
Carpenter, Edmonton.
Solicitor
for the intervener the Ontario Human Rights Commission: Ontario Human
Rights Commission, Toronto.
Solicitors for the
intervener the African Canadian Legal Clinic: Faisal Mirza Professional
Corporation, Mississauga; African Canadian Legal Clinic, Toronto.