Canadian Employment Law Today

6 | June 21, 2017 Canadian HR Reporter, a Thomson Reuters business 2017 More Cases a period of time Schrenk made a number of derogatory statements to Sheikhzadeh- Mashgoul and others about the latter's place of birth, religion, and sexual orienta- tion. Schrenk's employment was eventually terminated in March of 2014, after which Sheikhzadeh-Mashgoul filed a complaint of discrimination with the B.C. Human Rights Tribunal. Sheikhzadeh-Mashgoul alleged that Sch- renk had engaged in "unacceptable discrimi- natory and insulting behaviour targeting (Sheikhzadeh-Mashgoul's) country of ori- gin, religion, and sexual orientation between September 2013 and March 2014," and that his behaviour was permitted by Schrenk's employer. Schrenk did not acknowledge that he had made all of the statements al- leged by Sheikhzadeh-Mashgoul, but argued that even if the statements had been made, they could not constitute discrimination "in employment," as neither Schrenk nor his employer were in fact Sheikhzadeh-Mash- goul's employer. Question over discrimination regarding employment e B.C. Human Rights Code prohibits indi- viduals from discriminating against a person "regarding employment or any term or con- dition of employment" because of his pro- tected characteristic. e heart of Schrenk's argument before the tribunal was that his comments had no connection to Sheikhza- deh-Mashgoul's employment, because Sch- renk and Sheikhzadeh-Mashgoul were not in an employment relationship. If anything, Schrenk argued, Sheikhzadeh-Mashgoul was in a position of power over Schrenk as he was his acting supervisor. On those bases, Schrenk asked that the tribunal dismiss Sheikhzadeh-Mashgoul's complaint, which the tribunal denied. e tribunal did not give weight to Schrenk's ar- gument, finding that even though Sheikhza- deh-Mashgoul had "significant influence" over the way Schrenk performed his work, this did not, "in any way diminish the tri- bunal's jurisdiction over a complaint that an individual was negatively discriminated against in the course of his employment on the basis of religion, place of origin and sex- ual orientation." e tribunal's decision was upheld by the B.C. Supreme Court. At the B.C. Court of Appeal, however, the decision was overturned. e Court of Appeal found that the tribunal had no ju- risdiction over Sheikhzadeh-Mashgoul's complaint because the conduct he cited was not discrimination regarding his "em- ployment." "Not all insults inflicted upon employ- ees, even in the course of their employ- ment, 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 im- pose that unwelcome conduct on the com- plainant as a condition of employment, or if the wrongdoing is tolerated by the employer. If the wrongdoer has no such power or au- thority, the tribunal has jurisdiction to con- sider 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 jurisdic- tion over the wrongdoer," said the Court of Appeal. e appeal court's decision differentiated between individuals who are in a position to force the complainant to endure dis- criminating conduct as a condition of their employment, and individuals who aren't in position to force the complainant to endure it as a condition of their employment. In the former situation, the tribunal has jurisdic- tion to hear complaints and issue remedies where appropriate. In the latter, the tribunal has no jurisdiction. Given that these two in- dividuals employed by separate employers worked at the same worksite and the alleged harasser was the subordinate employee, this situation is different than two employees working for the same employer, especially if in that situation the alleged harasser is the superior. e B.C. Court of Appeal issued an or- der dismissing Sheikhzadeh-Mashgoul's complaint against Schrenk. e tribunal ap- pealed the decision to the Supreme Court, which heard the appeal this past March. Supreme Court's decision will have ramifications When the Supreme Court issues its deci- sion, it could have significant ramifications for individuals experiencing discrimina- tion in the workplace. As it stands, the B.C. Court of Appeal has clarified that individu- als are only protected under the B.C. Human Rights Code from workplace discrimina- tion insofar as they are forced to endure it as a condition of their employment. Human rights tribunals cannot remedy comments or actions that are otherwise unwelcome or offensive, but are not administered as a con- dition of employment. If the Supreme Court of Canada upholds the tribunal's original decision, the tribunal's jurisdiction to handle workplace discrimination complaints will expand significantly. For more information see: • Sheikhzadeh-Mashgoul v. Clemas Con- tracting, 2015 CarswellBC 190 (B.C. Hu- man Rights Trib.). • Schrenk v. British Columbia (Human Rights Tribunal), 2015 CarswellBC 2155 (B.C. S.C.). • Schrenk v. British Columbia (Human Rights Tribunal), 2016 CarswellBC 869 (B.C. C.A.). Harassment came from contractor on worksite « from DETERMINING on page 1 ABOUT THE AUTHORS Victoria J. Petrenko and Preston I.A.D. Parsons Victoria J. Petrenko and Preston I.A.D. Parsons are lawyers practicing employment law with Overholt Law in Vancouver. Victoria can be reached at victoria@ overholtlawyers.ca and Preston can be reached at preston@overholtlawyers.com. Either can be reached at Overholt Law at (778) 653 7561. The appeal court differentiated between those who can force the complainant to endure discrimination as a condition of employment and those who can't

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