On October 13th, the Supreme Court of Canada granted leave to appeal the B.C. Court of Appeal’s decision in British Columbia Human Rights Tribunal v Schrenk. By granting leave to appeal, the Court is going to weigh in on the extent to which discrimination in employment is predicated on there being a power imbalance between the perpetrator and the victim of harassing behaviour.
In this case, the complainant, a civil engineer, was the site representative of a consulting engineering firm serving as the contract administrator on a project. In that capacity, he supervised the work done by the subcontractor. The respondent was a site foreman employed by the subcontractor. The respondent made derogatory statements to the complainant and others with respect to the complainant’s place of birth, religion, and sexual orientation. The respondent followed up with derogatory emails sent directly to the complainant.
The complainant brought these comments to the attention of his employer, who at first reprimanded the subcontractor and then, when the derogatory emails were sent, threatened to terminate the subcontract. The subcontractor then terminated the respondent’s employment.
The complainant filed a complaint under the British Columbia Human Rights Code against both the respondent and the subcontractor, alleging that he had been discriminated against regarding his employment. Both the respondent and the subcontractor moved to strike the complaint on the grounds that it was outside the jurisdiction of the British Columbia Human Rights Tribunal. The Tribunal dismissed the motion, and the British Columbia Supreme Court dismissed an application for judicial review by both the subcontractor and the respondent.
The respondent, however, appealed further to the British Columbia Court of Appeal, who allowed his appeal. The Court of Appeal focussed on the absence of a power imbalance between the complainant and respondent. The Court of Appeal cited the legion of cases describing sexual harassment as about power not sex; for example, that sexual harassment has been defined by Professor Catharine MacKinnon (in a passage cited by the Supreme Court of Canada) as “the unwanted imposition of sexual requirements in the context of a relationship of unequal power.” The Court of Appeal therefore concluded that for discrimination or harassment to be “regarding employment”, the discrimination or harassment had to be made in a context whereby either the perpetrator has authority or power over the victim, or the employer failed to take appropriate steps to stop the inappropriate conduct. As the Court of Appeal put it:
“Applying those principles to the case at bar, 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.”
It is not surprising that the Supreme Court of Canada granted leave to appeal this case, but it does make it more surprising that the Court declined leave to appeal in a similar issue in Taylor-Baptiste v. Ontario Public Service Employees Union. In that case, the Ontario Court of Appeal upheld a decision by the Ontario Human Rights Tribunal dismissing a complaint by a manager against an employee who was also the president of the local branch of a union. While the employee had made sexist and offensive posts, the Tribunal dismissed the complaint because any finding by the Tribunal would disproportionately limit the freedom of expression of that employee. The Court of Appeal agreed with that conclusion in part because the complainant “was a manager who had the power in the workplace that came with that role.”
In the current case, the Supreme Court of Canada will have the opportunity to deal with several vexing questions, such as:
- Is harassment purely about power, or is it also about preserving dignity?
- Can a subordinate discriminate against a supervisor?
- Can a contractor discriminate against an employee?
- Can a customer discriminate against an employee?
The Supreme Court of Canada’s eventual decision will hopefully resolve some or all of these important questions.
If you have more questions about discrimination and harassment in the workplace, contact our Labour Law Group.