Authors: Fiona H. McFarlane

The Supreme Court of Canada has expanded the definition of workplace discrimination beyond the formal employer – employee relationship. In a decision dated December 15th, 2017, the Court decided that if there is nexus between two people working at the same location or on the same project within an employment context, even if there is no formal employment relationship between the two parties, then allegations of discrimination fall within the jurisdiction of the British Columbia Human Rights Tribunal. Since the Court was interpreting British Columbian legislation this broader interpretation of workplace applies to workplaces in British Columbia. That being said, an argument can be made for its application in other jurisdictions based on comments Justice Abella made in her concurring reasons.

The hearing that lead to the decision, British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, was the subject of a blog post in March 2017 by my colleagues Janice Rubin and Megan Forward. That blog post provides a comprehensive overview of the facts and legal argument which will not be repeated here.  What is important to remember is that this case involves what is a becoming an increasingly common work scenario – employees from multiple employers working together on the same project in a work environment that has all of the hallmarks of a workplace. In British Columbia Human Rights Tribunal v. Schrenk, the Complainant and the Respondent had different employers. However they worked together on the same road improvement project in Delta, British Columbia.

While the decision was not unanimous, all the judges approached the question of whether discrimination “regarding employment” can be perpetrated by someone other than the complainant’s employer or superior using statutory interpretation principles.  The majority broadly interpreted the words of the British Columbia Human Rights Code, having consideration for the purposes of the Human Rights Code which are:

(a) to foster a society in British Columbia in which there are no impediments to full and free participation in the economic, social, political and cultural life of British Columbia;

(b) to promote a climate of understanding and mutual respect where all are equal in dignity and rights;

(c) to prevent discrimination prohibited by this Code;

(d) to identify and eliminate persistent patterns of inequality associated with discrimination prohibited by this Code;

(e) to provide a means of redress for those persons who are discriminated against contrary to this Code.

Based on this decision, the British Columbia Human Rights Tribunal has the jurisdiction to decide whether the allegations of discrimination in this case occurred or not.

As mentioned above, it is likely that other jurisdictions will also adopt this broader interpretation of workplace discrimination based on Justice Abella’s analysis. At paragraph 73 of the decision, Justice Abella remarked that:

It seems to me that what the analysis in this case requires is that we consider the meaning of employment discrimination in a way that is consistent with, and emerges from, our well-settled human rights principles, and not just the particular words of British Columbia’s Code.

Following an analysis of the legal test for discrimination in employment and its focus on the impact on the complainant, Justice Abella then states, at paragraph 90:

Discrimination can and does occur in the absence of an economic power imbalance. It cannot depend on technical lines of authority which may end up defeating the goals of human rights legislation. While employment discrimination is often, not surprisingly, focused on the ability of employers to subject complainants to discriminatory conduct as a condition of employment, all individuals have the right to be protected from discrimination in the workplace, including those in a position of authority.

What employers need to consider

The key going forward, when assessing whether your employee has been discriminated against by an employee from another employer that requires action of your part, is to determine:

  • Whether the person who is alleged to have discriminated against your employee is integral to your employee’s workplace; and
  • Whether the discriminatory conduct occurred in your employee’s workplace; and
  • Whether your employee’s work performance or work environment was negatively affected.

What workplace investigators need to consider

Based on the principles outlined in Schrenk, when a workplace investigator is asked to investigate discrimination or harassment between employees from multiple employers working together on the same project, it will be important to know:

  • Do you have buy-in to investigate from both the Complainant’s and the Respondent’s employers? If you do not, then you may not be able to properly interview all necessary parties and witnesses.  If the Respondent’s employer does not see the need for an investigation, then this should be noted in your report and what impact it had on fact finding.
  • Do you have sufficient time to conduct all the necessary interviews to gather all the facts? A multiple employer workplace may mean more a complicated investigation. While timeliness should be a hallmark of your investigation, fairness, thoroughness and confidentiality should not be sacrificed.
  • Are you being asked to consider the workplace discrimination policies of just one or both employers when assessing whether the facts you have gathered amount to discrimination? In an ideal world, all employers have robust discrimination and harassment policies that set out what is not acceptable conduct and employers working on the same project have symbiotic policies.  If that is not the case, it will be important to set out in your report what policies you have considered.

The Supreme Court of Canada’s expanded definition of workplace discrimination beyond the formal employer – employee relationship is significant. It is one example of how human rights law is adapting to meet the challenges of the evolving world of work.

Fiona McFarlane


About the Author: Vancouver-based workplace investigator Fiona McFarlane conducts workplace investigations into allegations of harassment and workplace violence, code of conduct violations, bullying, poisoned work environments, privacy breaches and other problematic workplace behaviour. Fiona also provides workplace investigation and human rights training to staff at all levels.