Canadian Employment Law Today

February 14, 2018

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Canadian HR Reporter, a Thomson Reuters business 2018 Cases and Trends and subsequent emails based on his religion, place of origin, and sexual orientation by Ed- ward Schrenk. Sheikhzadeh-Mashgoul was a civil en- gineer working for Omega and Associates Engineering Ltd, who was hired to supervise a road improvement plan by the munici- pality of Delta in British Columbia. He was required to supervise the work of Clemas Contracting at a roadwork site, with whom Schrenk was a site foreman and superinten- dent. After experiencing a series of alleged discriminatory comments and emails from Schrenk, Sheikhzadeh-Mashgoul filed a complaint with the British Columbia Hu- man Rights Tribunal against Schrenk, alleg- ing employment discrimination based on re- ligion, place of origin, and sexual orientation. Schrenk argued that since he was not in a po- sition of economic authority over Sheikhza- deh-Mashgoul and didn't work for the same employer, it was not discrimination "regard- ing employment" and, therefore, outside the jurisdiction of the tribunal. e tribunal disagreed and found that Schrenk's conduct was covered by the code even though he was not Sheikhzadeh-Mashgoul's superior in the workplace or associated with his employer. Schrenk appealed this decision all the way to the Supreme Court of Canada. e question dealt with by the Supreme Court was: What is the breadth of the prohi- bition of discrimination regarding employ- ment in the code — could that discrimina- tion be perpetrated by someone other than a superior in the workplace or someone not working for the employer? A broad concept e court examined the language of "re- garding employment" in s. 13(1)(b) of the code. e court determined that the term "regarding employment" reflects a broad concept that means the matter must be re- lated to employment in some way. After a thorough analysis, the court found that "re- garding employment" does not refer to dis- crimination that takes place only within the direct employment relationship. e court found in order to determine whether conduct falls under s. 13(1)(b) of the code, a contextual approach must be applied to examine the facts of each par- ticular case to determine whether the al- leged discriminatory behaviour has a suf- ficient nexus to the employment context. If the nexus exists, then there has been dis- crimination "regarding employment" and the complainant can then seek a remedy against the individual discriminating. e court also outlined some factors to assist with the contextual analysis: • Whether the person doing the discrimi- nating was integral to the complainant's workplace • Whether the impugned conduct occurred in the complainant's workplace • Whether the complainant's work perfor- mance or work environment was nega- tively affected. e court was careful to emphasize that these factors are not exhaustive and their rel- evance will depend on the circumstances of each situation. Applying the above factors in relation to the case at hand, Canada's top court deter- mined that the alleged discriminatory con- duct of Schrenk would fall under s. 13(1)(b) of the code as being related to employment. Taking everything into account, it affirmed the tribunal's decision and allowed the appeal. Takeaways for employers Although this case related to the code in British Columbia, there is the potential it may have an effect on jurisprudence in other Canadian jurisdictions. Ontario's Human Rights Code, for example, also prohibits workplace discrimination but the wording is slightly different, stating "every person has a right to equal treatment with respect to employment without discrimination…" It may be that the wording is similar enough to British Columbia's code that the Schrenk decision could spark new liability in relation to discrimination in Ontario and other jurisdictions, resulting in human rights claims from individuals that may not have a direct employment relationship with the offending party. For more information see: • British Columbia Human Rights Tribunal v. Schrenk, 2017 CarswellBC 3506 (S.C.C.). Ronald S. Minken is a senior lawyer and me- diator at Minken Employment Lawyers, an employment law boutique in Markham, Ont. Ron gratefully acknowledges Aneesha Lewis for her assistance in preparation of this article. Ronald and his firm can be reached by visiting of overall service, whether the employer in- duced the employee to return, and whether the employee returned with recognition of his or her prior seniority: see Balchin v. Die- Cast Marwest Ltd. In Graham v. Galaxie Signs Ltd., the employee had two breaks in service is- sues. e first break was a six-month un- approved leave during which he worked for a competitor of the employer. e em- ployee could not establish that his return was pre-arranged or that upon return his past services were recognized. As such, the first absence was deemed to break his term of service. e second absence was for two years. e employer recruited the employee to come back, and the employee bargained for the recognition of his past service and retention of seniority. is included six per cent holiday pay, rather than four per cent, reflecting a longer period of service. e court also accepted the verbal commitment of the employer, who, in inducing the em- ployee to return, stated "it will be like you never left." erefore, the second absence did not break the term of service. For more information see: • ompson Bros. (Constr.) Ltd. v. Saar, 2012 CarswellAlta 2359 (Alta. Ump. Under Emp. Stndrds. Code). • Stant v. Elaho Logging Ltd., 2017 CarswellBC 1105 (B.C. S.C.). • Brien v. Niagara Motors Ltd., 2009 CarswellOnt 7820 (Ont. C.A.). • Gibara v. ABN Amro Bank Canada, 2003 CarswellOnt 4026 (Ont. S.C.J.). • Balchin v. Die-Cast Marwest Ltd., 1987 CarswellMan 17 (Man. Q.B.). • Graham v. Galaxie Signs Ltd., 2010 CarswellBC 1061 (B.C. S.C.). 6 | February 14, 2018 Reason for employee's resignation given considerable weight Harasser was integral to complainant's workplace « from ASK AN EXPERT on page 2 « from SUPREME COURT on page 1 The term 'regarding employment' doesn't prohibit discrimination within the employment relationship heirarchy only

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