Case In Point
What Nexus is Required to Establish a Tribunal’s Jurisdiction over Discriminatory Conduct Arising at a Workplace?
Date: October 20, 2016
The Supreme Court of Canada will be delivering a decision likely to provide further clarity on the scope of the jurisdiction of British Columbia Human Rights Tribunal (Tribunal) to hear a complaint alleging discrimination regarding employment involving parties who work for different employers.
On October 13, 2016, the Supreme Court of Canada granted leave to appeal in the decision of Schrenk v British Columbia (Human Rights Tribunal), a case that considered whether the Tribunal had jurisdiction to hear a complaint regarding alleged discriminatory comments made by the respondent about the complainant during the course of their employment. The matter arose under section 13(1)(b) of the British Columbia Human Rights Code (Code), which prohibits discrimination against a person “regarding employment” or any term or condition of employment.
The complainant in the Schrenk case was a civil engineer employed by an engineering firm that was responsible for supervising a road improvement project owned by a Municipality. The site foreman, Mr. Schrenk, was employed by a separate company, Clemas. The complainant alleged that Mr. Schrenk discriminated against him regarding employment by making derogatory statements on the worksite with respect to the complainant’s place of birth, religion and sexual orientation. A critical fact in this case was that the complainant supervised Mr. Schrenk, the respondent.
The issue, according to the Tribunal, was whether there was prohibited conduct of any person that might be said to have adversely affected an employee in their employment. Since Mr. Schrenk was a person who adversely affected the complainant’s employment by his conduct, and the conduct occurred at the complainant’s workplace (i.e. the shared worksite), the Tribunal found there was a sufficient nexus for the purposes of the Code, and therefore, it had jurisdiction to hear the dispute.
Mr. Schrenk judicially reviewed and then appealed that decision, arguing that the alleged statements could not be said to constitute “discrimination regarding employment” within the meaning of the Code. The British Columbia Court of Appeal concluded that the Tribunal had no jurisdiction to hear the complaint because Mr. Schrenk did not exercise any control over the complainant and as such the respondent, Mr. Schrenk, could not control the complainant’s conditions of employment. Among other things, the Court stated as follows:
 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. […]
 Applying those principles to the case at bar, the Tribunal certainly has jurisdiction in relation to an allegation that a person has forced the complainant, expressly or otherwise, to endure harassment at work. It had jurisdiction to address the response of the complainant’s employer to his complaint. It does not, however, 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.
This case has important implications for the scope of discriminatory conduct in employment. In particular, the case raises issues of when, and to what extent, employees who work for separate companies can affect the employment of another individual to such an extent that it amounts to discrimination regarding employment. The decision of the Supreme Court of Canada is likely to further clarify the law regarding the scope of discrimination regarding employment and will have important implications for employers – particularly those who frequently work with third parties. Hicks Morley is following the case and will publish a further update when the Supreme Court’s decision is released.