Supreme Court of Canada affirms BC Human Rights Tribunal decision to dismiss application, finding the HRT had jurisdiction over the complaint where section 13 only requires a sufficient nexus with the employment context, and not necessarily a relationship of economic power

20. February 2018 0

The BC Human Rights Tribunal dismissed a respondent’s application to dismiss a complaint against him on the basis that the HRT did not have jurisdiction. The complaint was made by an individual who was not employed by the respondent or the respondent’s employer, but rather, they worked on a mutual project together. The respondent argued the complaint did not fall under s. 13 of the Human Rights Act because he and the complainant were not in an employment relationship with one having economic power over the other. The Supreme Court of Canada affirmed the HRT’s decision to dismiss the application, finding the HRT had jurisdiction over the complaint, as s. 13 only requires a sufficient nexus with the employment context, and not necessarily a relationship of economic power.

Administrative law – Decisions reviewed – Human Rights Tribunal – Discrimination – Appeals – Judicial review – Jurisdiction – Standard of review – Correctness – Employment

British Columbia Human Rights Tribunal v. Schrenk, [2017] S.C.J. No. 62, 2017 SCC 62, Supreme Court of Canada, December 15, 2017, B. McLachlin, C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, R. Wagner, C. Gascon, S. Cote, R. Brown and M. Rowe JJ.

Mr. SM, an engineer, complained to the Human Rights Tribunal (HRT) that he was being discriminated against by Mr. S, a site foreman, regarding employment under s. 13(1)(b) of the Human Rights Act. Mr. SM and Mr. S had different employers and were working on a mutual project together; they were not in a supervisor-supervisee relationship. Mr. S and his employer applied to dismiss the complaint, arguing the HRT did not have jurisdiction because s. 13 of the HRA did not apply on the basis that Mr. S was not in an employment relationship with Mr. SM. The HRT denied Mr. S’s application, finding it did have jurisdiction. Mr. S could be liable under s. 13 given that Mr. SM was an employee who claimed he had been negatively affected in his employment because of discriminatory harassment, even though Mr. SM was not an employee of Mr. S or Mr. S’s employer.

Mr. S applied for judicial review, and the BC Supreme Court dismissed his petition. Applying the correctness standard, the court concluded the HRT did not err in its interpretation and application of s. 13 to the case. The judge noted that restricting s. 13(1)(b) to claims against one’s employer or against another employee of the same employer would be unduly narrow and contrary to common sense and current employment circumstances.

The Court of Appeal unanimously allowed Mr. S’s appeal. Applying the correctness standard, it found the HRT erred in law by concluding it had jurisdiction to deal with the complaint. In the Court’s view, the HRT’s jurisdiction was limited to addressing complaints against those who have economic power to inflict discriminatory conduct as a condition of employment.

The HRT appealed the Court of Appeal’s decision to the Supreme Court of Canada (SCC). The SCC disagreed with the Court of Appeal’s narrower interpretation of s. 13 of the HRA, and found that s. 13(1)(b) applies to prohibit discrimination against employees whenever that discrimination has a sufficient nexus with the employment context; it was not limited to relationships where one has economic power over the other. The SCC confirmed the criteria to be considered in determining whether a sufficient nexus with the employment context is present. The SCC allowed the appeal and affirmed the HRT’s decision.

This case was digested by Kara Hill, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Kara Hill at [email protected].

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