Canadian HR Reporter

February 2018 CAN

Canadian HR Reporter is the national journal of human resource management. It features the latest workplace news, HR best practices, employment law commentary and tools and tips for employers to get the most out of their workforce.

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CANADIAN HR REPORTER FEBRUARY 2018 NEWS 3 Supreme Court of Canada clarifies expanse of B.C. Human Rights Code Case involved two men working for different employers at same construction site BY SARAH DOBSON AS the modern workplace con- tinues to evolve, employers might want to take note of a recent de- cision by the Supreme Court of Canada that seems to expand pro- tections against discrimination. In essence, the court said the Human Rights Code in British Columbia is not limited to pro- tecting employees solely from dis- criminatory harassment by their superiors in the workplace. In fact, it "prohibits discrimination against employees whenever that discrimination has a sufficient nexus within the employment context... is may include dis- crimination by their co-workers, even when those co-workers have a different employer." In addition, the court spoke of "employee vulnerability (that) stems not only from economic subordination to their employ- ers, but also from being a captive audience to other perpetrators of discrimination, such as a harass- ing co-worker." e case is important in that is "preserves a wider scope of ju- risdiction" for the Human Rights Code, and it keeps the code more relevant to the kinds of workplac- es that are out there, according to Margot Young, professor at the Peter A. Allard School of Law at the University of British Columbia in Vancouver. "It's less rigid a notion of how power circulates in the workplace, in a way that affects how people experience that workplace in terms of dignity and rights and flourishing." There's a recognition of the changing nature of the workplace, where non-traditional relation- ships are, nonetheless, subject to prohibition against discrimina- tion, she said. "e nature of the Canadian workplace is evolving, and the gig economy, and we see much more of these non-formal connections experienced by co-workers on the same workplace site. And there doesn't have to be this traditional employer-employee relationship for powers that reflect ongoing inequities in our society like race, sexual orientation, abilities, cul- ture, and so on, to be deployed against individuals in a really damaging way." e Supreme Court is showing it understands the different way power dynamics can work in the workplace, said Robin Gage, part- ner at Arvay Finlay in Victoria, "so the vulnerability of an employee to discrimination and harassment can take a lot of forms, and both gendered power and racialized power, all those different kinds of things, as well as who the perpe- trator might be." is decision is hugely impor- tant within the context of what's happening in society right now, particularly with the greater focus on harassment, said Sandra Guar- ascio, a partner at Roper Greyell in Vancouver. "is case increases the pros- pect of liability and responsibility for the things that come up." However, to be clear, the case "does not say an employer of a perpetrator is automatically re- sponsible for the actions of its employees or the perpetrators," she said. "In fact, this particular case is specifically about an individual perpetrator being held account- able for his actions, and not being able to hide behind the fact that he works for a different employer than the complainant." Two employers, one worksite The case involved "S-M," who worked for Omega and Associ- ates Engineering in 2013 as a civil engineer on a road improvement project. Omega had certain su- pervisory powers over employees of Clemas Construction, the pri- mary construction contractor on the project. Clemas employed Edward Schrenk as a site foreman and superintendent, however, he made racist and homophobic statements against S-M on the worksite. When S-M complained to Omega, it asked Clemas to remove Schrenk from the site, and Clemas did so. But Schrenk continued to be involved on the project in some capacity, and the harassment continued, so his em- ployment was terminated. S-M then chose to file a com- plaint against Schrenk before the British Columbia Human Rights Tribunal, alleging discrimination on the basis of religion, place of origin and sexual orientation. But Schrenk said the Human Rights Code had no application because the two men were not in an em- ployment relationship. The tribunal disagreed and denied Schrenk's application, as did the British Columbia Su- preme Court. But the Court of Appeal allowed Schrenk's appeal and said the tribunal erred in law by concluding it had jurisdiction over the complaint. Most recently, in its Dec. 15 decision, the majority of the Su- preme Court of Canada disagreed with the Court of Appeal. In essence, the Supreme Court said the Human Rights Code was not limited to protecting employ- ees solely from discriminatory "We see much more of these non-formal connections experienced by co-workers." THE > pg. 10

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