Supreme Court to revisit the Meaning of “Employment” in Human Rights Code

In 2014, the Supreme Court of Canada considered whether a partnership agreement constituted protected “employment” pursuant to the British Columbia Human Rights Code in McCormick v Fasken Martineau DuMoulin LLP. The Supreme Court ruled that a partnership was not “employment” and dismissed the case. On March 28, 2017, the Supreme Court will once again have occasion to consider the scope of “employment” in British Columbia Human Rights Tribunal v  Edward Schrenk.

The Complainant was an engineer who worked for Omega, an engineering firm. At the construction site, Edward Schrenk, the foreman of the project’s contractor, Clemas, allegedly made discriminatory comments to the Complainant, a Muslim man, such as “You’re not going to blow us up with a suicide bomb are you?”;  “f*** muslim piece of shit”; and “go back to your mosque where you came from”, among other insults. The Complainant made a complaint to Clemas and Mr. Schrenk was dismissed from employment.

The Complainant then filed a complaint with the British Columbia Human Rights Tribunal alleging discrimination in employment by Mr. Schrenk, and that his conduct was condoned by Clemas and the owner of site. Mr. Schrenk and Clemas contested the Tribunal’s jurisdiction to hear the Complaint and asserted that because the Complainant was not an employee of Clemas, but an employee of Omega, Mr. Schrenk’s conduct did not amount to “discrimination in employment” within the meaning of the Code. The Tribunal sided with the Complainant and found that the Code encompasses protection for all discrimination regarding employment. The British Columbia Court of Appeal reversed the Tribunal’s decision and found that the Complainant did not stand “in such a relationship to the appellant [Schrenk and Clemas] that the appellant [Schrenk and Clemas] was in a position to discriminate against him with respect to employment”.

In Ontario, the Human Rights Tribunal has also had occasion to examine the scope of the employment relationship in Di Muccio v Newmarket. In that case, the complainant, a City Counsellor, alleged sexual harassment and reprisal in employment against the Town and other members of Council. The Tribunal dismissed Ms. Di Muccio’s application, finding the applicant’s relationship with the Town and her dispute with the other Members of Council was not “with respect to employment.” Key to the Tribunal’s determination was its finding that, as an elected official, the City did not hire and could not fire her or the individuals on Council she alleged were discriminating against her.

The Supreme Court’s eventual ruling on this point could have far-reaching consequences for employers. Should the Supreme Court uphold the Complainant’s interpretation of “employment,” employers could effectively be required to respond to and defend discrimination complaints from not only their own employees, but individuals with whom some nexus can be drawn to employment. We will advise readers of the outcome of this appeal once the Supreme Court of Canada releases its decision.