Supreme Court Weighs In On Workplace Discrimination Outside of Employment Relationship

Written on behalf of Arbesman Hamilton LLP

It is not uncommon to hear of cases where allegations of discrimination are made against someone’s employer or a person’s superior in the workplace. However, a recent Supreme Court of Canada decision looked at whether discrimination can occur at the hands of someone other than an employer or superior.

Racism and Homophobic Actions At The Workplace

The story begins in 2013 when the employee, who was an Iranian immigrant and Muslim, was working as a civil engineer on a road improvement project where he was given some supervisory powers over the construction contractor hired to carry out the work. The construction company also employed a foreman. During the first few months of the project there were a number of incidents where the foreman acted abusively towards the employee, including saying things such as “You are not going to blow us up with a suicide bomb, are you?” On another occasion, the foreman shoved the employee, using foul language and telling him to “go back to your mosque where you came from.” After being removed from the worksite, the foreman continued to harass the employee via email, including using homophobic language.

The employee filed a complaint against the foreman before the British Columbia Human Rights tribunal in April 2014, alleging discrimination on the basis of religion, place of birth, and sexual orientation – all protected grounds under section 13(b) of the province’s Human Rights Code. The foreman applied to have the complaint dismissed, arguing the Tribunal did not have jurisdiction over the matter since the two men did not have a direct employment relationship.

The Case Makes Its Way Through The Courts

The Tribunal rejected the foreman’s claim, stating protection under section 13 is not limited to discrimination by an employer. The case worked its way through the Supreme Court of British Columbia, which sided with the Tribunal and the British Columbia Court of Appeal, which held the Tribunal had erred in taking jurisdiction because the foreman was not in a position of power over the employee, and therefore was “not in a position to force (the employee) to endure the conduct as a condition of his employment.”

The case eventually made its way to the Supreme Court of Canada, which noted that the appeal before it called for “an exercise in statutory interpretation” around the words “regarding employment.” The court sided with the Tribunal, which employed a broad understanding of the words, including relationships outside those of a supervisory nature. The court held that there is an employment situation can occur when there is a sufficient nexus, or connection between things, with the employment context. The court went on to outline factors that could be considered in demonstrating such a nexus, including:

  • Whether the respondent was integral to the complainant’s workplace
  • Whether the conduct in question occurred at the workplace
  • Whether the complainant’s work environment or performance was negatively impacted.

The court found that in the case in question, the foreman was an integral and unavoidable part of the complainant’s work environment and that his conduct did have a detrimental impact on the workplace.

The Decision’s Impact In Ontario

Ontario’s Human Rights Code already had a broad definition of what constitutes discrimination in the workplace, applying it “with respect to employment.” The province’s Human Rights Tribunal has applied this broad definition to include a wide range of relationships, including contractors and sub-contractors. However, the decision will provide employees with greater protection in provinces such as British Columbia, where a narrower definition of discrimination in an employment setting was used.

Arbesman Hamilton LLP represents both employees and employers in employment law matters and disputes related to the workplace, including representation at litigation or through dispute resolution processes. We work with our clients to build strong, long lasting relationships and provide practical, honest, and customized legal advice specific to our clients’ needs. Call us at 416-481-5604 or contact us online to talk today.