Discrimination in Employment (Third Party Actions)

British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 (CanLII), (2017) 2 SCR 795

[1] This case is about the scope of the prohibition against discrimination “regarding employment” under s. 13(1)(b) of the British Columbia Human Rights Code, R.S.B.C. 1996, c. 210. On April 3, 2014, Mr. Mohammadreza Sheikhzadeh-Mashgoul filed a complaint with the appellant, the British Columbia Human Rights Tribunal, against the respondent, Mr. Edward Schrenk, alleging employment discrimination based on religion, place of origin, and sexual orientation. Mr. Schrenk responded with an application to dismiss under s. 27(1)(a) of the Code, in which he argued that the alleged conduct was not discrimination “regarding employment” and was consequently beyond the jurisdiction of the Tribunal. The crux of Mr. Schrenk’s argument is simple: as he was not in a position of economic authority over Mr. Sheikhzadeh-Mashgoul — he was neither his employer nor his superior in the workplace — his conduct, however egregious, could not be considered discrimination “regarding employment” within the meaning of the Code.

[2] At issue, then, is the question of whether discrimination “regarding employment” can ever be perpetrated by someone other than the complainant’s employer or superior in the workplace. To be clear, the issue is not whether Mr. Schrenk’s alleged conduct would amount to discrimination; no one disputes this. Rather, the question in this appeal is whether such discrimination was “regarding employment”.

[3] I conclude that it was. The scope of s. 13(1)(b) of the Code is not limited to protecting employees solely from discriminatory harassment by their superiors in the workplace. Rather, its protection extends to all employees who suffer discrimination with a sufficient connection to their employment context. This may include discrimination by their co-workers, even when those co-workers have a different employer. Consequently, the Tribunal did not err in concluding that Mr. Schrenk’s conduct was covered by s. 13(1)(b) despite the fact that he was not Mr. Sheikhzadeh‑Mashgoul’s employer or superior in the workplace.