Determining the scope of workplace harassment

Top court's ruling on B.C. case will clarify jurisdiction of human rights tribunals when discrimination comes from a non-employer
By Victoria Petrenko and Preston Parsons
|Canadian Employment Law Today|Last Updated: 06/21/2017

Can a worker be discriminated against in the workplace by someone who works with a different company and in a subordinate role? This is the question the Supreme Court of Canada was faced with this past spring, as the court seeks to clarify the boundaries of the “workplace” when it comes to human rights law. The court’s eventual decision could expand human rights tribunals’ jurisdiction when it comes to workplace harassment.

The case before Canada's top court began in 2014. Edward Schrenk was employed by Clemas Contracting, a company providing general contractor work for construction sites in Langley, B.C., and was supervised by Mohammadreza Sheikhzadeh-Mashgoul, who was on site as a representative of a separate consulting engineering firm. Over a period of time Schrenk made a number of derogatory statements to Sheikhzadeh-Mashgoul and others about the latter’s place of birth, religion, and sexual orientation. Schrenk’s employment was eventually terminated in March of 2014, after which Sheikhzadeh-Mashgoul filed a complaint of discrimination with the B.C. Human Rights Tribunal.

Sheikhzadeh-Mashgoul alleged that Schrenk had engaged in “unacceptable discriminatory and insulting behaviour targeting (Sheikhzadeh-Mashgoul’s) country of origin, religion, and sexual orientation between September 2013 and March 2014,” and that his behaviour was permitted by Schrenk’s employer.  Schrenk did not acknowledge that he had made all of the statements alleged by Sheikhzadeh-Mashgoul, but argued that even if the statements had been made, they could not constitute discrimination “in employment,” as neither Schrenk nor his employer were in fact Sheikhzadeh-Mashgoul’s employer.