By  Linda McKay-Panos

Reposted with permission from LawNow (March/April 2018) 42(4)

Human rights legislation across Canada has similarities and differences. Most legislation covers discrimination in specific contexts (such as services customarily available to the public) and membership in professional associations or trade unions, or relationships (such as employment or landlord and tenant). Many also cover statements made in public. People are often protected from discrimination on grounds which include race, religious belief, gender, colour, ethnicity, sexual orientation, disability (mental and physical), age and the like. The wording of various statutory provisions is similar but not identical between jurisdictions. The varying interpretations given by the courts and human rights tribunals to the statutory provisions has led to a very complicated set of cases and principles on employment and discrimination.

Human rights legislation has acquired the status of “quasi-constitutional”: this is paramount or dominant law, which applies to all other statutes in the jurisdiction, and it can supersede or trump contradictory laws. For example, subsection1(1) of the Alberta Human Rights Act (“AHRA”) reads: “Unless it is expressly declared by an Act of the Legislature that it operates notwithstanding this Act, every law of Alberta is inoperative to the extent that it authorizes or requires the doing of anything prohibited by this Act.” Categorizing human rights legislation as quasi-constitutional allows other legislation to be broadly interpreted in order to align with the purposes of human rights law.

Statutes also need to be interpreted under the modern principles of statutory interpretation. As stated by E.A. Driedger, in Construction of Statutes, “there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”

Recent developments in human rights law, in the employment context in particular, suggest that the differences in wording between statutes may actually matter. Various human rights laws across Canada all prohibit discrimination against employees both at the hiring stage and during the course of employment. While some of the laws include definitions of “employer” or “employment”, others rely on judicial interpretations of these terms. Some human rights laws on discrimination in employment provide that “no person” shall discriminate. Others like the AHRA provide that “no employer” shall discriminate.

Initially, courts and human rights tribunals were asked to determine whether human rights legislation on employment covered the relationship between the complainant and the alleged discriminator (respondent). Over time, the caselaw became quite complex as the nature of “employment” relationships changed, in ways including:

• use of contractors rather than employees
• control and use of volunteers; or
• use of contractors and sub-contractors.

In Alberta, the complexity of the caselaw culminated in the case of Lockerbie & Hole Industrial Inc. v Alberta (Human Rights and Citizenship Commission), 2011 ABCA 3. At issue was whether Syncrude, the owner of the site where the worker performed his work as a sub-contractor, was an “employer” for the purposes of the human rights legislation. In concluding that the site owner was not an employer for the purposes of Alberta’s human rights legislation, the Alberta Court of Appeal (“ABCA”) held that there were several indicators of an employment relationship for the purposes of the legislation, and the most crucial factors in the relationship were control and direction. The ABCA set out a non-exhaustive or incomplete list of 13 factors that could indicate an employment or co-employment relationship. Other legal issues have included whether discrimination or harassment has to be “in the course of employment” for the human right protections to apply, or whether the legislation applies to circumstances that occur away from the usual work site.

More recently, the issue has become whether a person, who is working beside another person on the same project, but who is not employed by the same employer, could be held liable for discrimination (in addition to the employer). The Supreme Court of Canada (“SCC”), in British Columbia Human Rights Tribunal v Schrenk, 2017 SCC 62 (“Schrenk”), expanded the scope of protection under British Columbia’s Human Rights Code (“BCHRC”).

Mohammadreza Sheikhzadeh-Mashgoul (the Complainant under the BCHRC) worked on a construction project as a civil engineer. He was harassed on site by a site foreman and superintendent, Edward Schrenk, who allegedly made racist and homophobic statements that were directed at the Complainant. The case occurred on a construction site, and importantly, the two men had different employers.

The Complainant filed a complaint against both Schrenk and his employer; both argued that the Human Rights Tribunal (“Tribunal”) had no jurisdiction to hear the complaint because the Complainant had no employment relationship with either of them. The Tribunal found that it had jurisdiction despite the lack of employment relationship. The British Columbia Court of Appeal (“BCCA”) overturned this decision, on the grounds that the BCHRC only applied when the employer was able to force the complainant to endure the discrimination as a condition of employment.

A majority of the SCC overturned the BCCA, holding that the complaint against both Schrenk and his employer should be allowed to proceed even though there was no direct employment relationship between them and the Complainant. Justice Rowe, speaking for the majority, held that the most important indicator was context, and that there must be a sufficient nexus (or relationship) with the employment context, but discrimination in employment was not limited by the identity of a co-worker’s employer. Justice Rowe focussed on the following factors when making the contextual analysis:

• Whether the respondent (Schenk and his employer in this case) was integral to the complainant’s workplace;
• Whether the conduct in question occurred in the complainant’s workplace; and
• Whether the complainant’s work performance or work environment was negatively affected.

Justice Rowe also relied on the specific wording of the BCHRC, as it prohibits a “person” from discriminating “regarding employment”. He found this wording was sufficiently broad to include the relationships between the Complainant and both Schrenk and his employer. On the other hand, Alberta’s legislation prohibits discrimination “by employers”.

In a concurring judgment, Justice Abella agreed with the majority’s decision. In doing so, she focussed on a broader, purposive approach and suggested that analysis of human rights legislation requires: “that we consider the meaning of employment discrimination in a way that is consistent with, and emerges from, the Court’s well-settled human rights principles, and not just the particular words of the Code.”

Chief Justice McLachlin (now retired) dissented and would have dismissed the appeal, agreeing with the BCCA that the protection covered by the BCHRC requires that there be an employer-employee relationship or something similar.

It will be interesting to see whether the majority’s approach in Schrenk will apply in situations where the applicable human rights legislation is not worded in a manner that would easily permit a similar broad and liberal interpretation.