The BC Human Rights Tribunal had no jurisdiction over a workplace discrimination complaint made by a supervisor against an employee who had no ability to force the supervisor to endure such conduct, the BC Court of Appeal has held.

In Schrenk v. British Columbia Human Rights Tribunal, 2016 BCCA 146, the complainant, a civil engineer, was the site representative for a consulting firm working on a road improvement project.  He supervised several workers on the site who were employed by another company, Clemas Contracting Ltd. (“Clemas”).   One of Clemas’ employees, Schrenk, repeatedly made derogatory statements to the complainant with respect to his place of birth, religion and sexual orientation. The complainant’s firm complained to Clemas about this conduct, who dismissed Schrenk.

The complainant also filed a complaint against Schrenk with the BC Human Rights Tribunal, alleging unacceptable discriminatory behavior in the workplace.  Section 13(1)(a) of the Human Rights Code (the “Code”) prohibits discrimination against a person “regarding employment.”

In prior decisions, the Tribunal has held that employment discrimination can occur at the hands of those who are not employed by the same company as complainants, such as trade unions or regulatory bodies. Relying on these decisions, the Tribunal concluded that the complaint was within its jurisdiction despite the lack of an employment relationship between the complainant and Schrenk, since the conduct occurred in the workplace.  An application for judicial review to the BC Supreme Court was dismissed.

At the Court of Appeal, Schrenk argued that his conduct could not amount to discrimination under the Code, as he had no authority to impose the conduct on the complainant as a condition of his employment.  The Court of Appeal agreed, reasoning that not all harassment endured by employees in the course of their employment amounts to discrimination “regarding employment” under the Code.  In this case, the complainant was essentially Schrenk’s supervisor, and Schrenk was not in a position to discriminate against the complainant with respect to his employment.  The Court of Appeal held that Schrenk’s behaviour in the workplace did not fall within the jurisdiction of the Tribunal, stating:

“… 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.”

The Court of Appeal quashed the decision of the Tribunal and granted an order dismissing the complaint against Schrenk.

The decision relied heavily on prior cases where the courts have held that employment discrimination takes place where the wrongdoer is in a position to impose such conduct as a condition of employment. Here, Schrenk had no such authority over the supervisor. However, one must question whether the Court intended to suggest that a power imbalance must always exist for a complaint of employment discrimination to be made out.

For instance, many cases of sexual harassment in the workplace involve harassment by a peer employee, i.e. not a supervisor. In such an instance, the employee may make a complaint against the employer if it tolerates such conduct. However, would the Tribunal have jurisdiction over a human rights complaint against the peer employee in the absence of a power imbalance? It will be interesting to follow the Tribunal’s application of the Court of Appeal’s decision in such cases.