In British Columbia Human Rights Tribunal v Schrenk, (1) the Supreme Court of Canada (SCC) was tasked with determining the scope of section 13 of the British Columbia Human Rights Code [the Code], (2) which prohibits discrimination in the course of employment. Central to this determination was whether section 13 applied beyond the traditional direct employment relationship, which attaches to employers and supervisors as persons with authority in and control over the workplace. The resulting decision determined that a complaint of employment discrimination under section 13 of the Code could be made against a broader range of actors in the workplace (including co-workers with different employers, as was the case in Schrenk). However, the decision was not without contestation. Three separate opinions were rendered in this matter: the majority opinion per Moldaver J, Karakatsanis J, Wagner J, Gascon J, and Rowe J expanded the scope of section 13 to include actors who are "integral" to the complainant's workplace; a concurring opinion per Abella J argued for a broad interpretation of section 13, which would allow the complainant to pursue a complaint against any person who discriminated against them in the course of their employment; and finally, a dissenting opinion, per McLachlin CJC (as she then was), Cote J, and Brown J would have maintained a limited application of section 13 to situations of direct-employment and analogous relationships.
The opinions in Schrenk each offer a distinct understanding of the scope and purpose of the protection against employment discrimination under human rights law, intrinsically connected to how the contemporary workplace is understood and employment relationships are characterized within that space. As social, political, and legal conversations surrounding 21st-century workplaces in Canada increasingly recognize and grapple with the complexities attending this space, and the apparent disconnect between legal frameworks governing the workplace and their on-the-ground realities, the opinions in Schrenk provide an opportune lens through which to engage in an exploration of these broader challenges and their application to legal analysis and reasoning.
This comment proceeds in five parts. The first part provides an overview of the factual circumstances and issues at play in Schrenk, and maps these circumstances and issues onto broader trends and issues in the contemporary Canadian labour landscape. Parts two, three, and four identify and explain the primary arguments, claims, and evidence that the dissenting, majority, and concurring opinions in Schrenk rely upon to reach their particular conclusions, respectively. They also discuss the ways in which these opinions reveal distinct understandings about employment discrimination and the contemporary workplace. This comment concludes with a fifth part that brings together these distinct analyses to revisit and reflect upon the challenges for legal regulation of, and in, contemporary workplaces.
CONTEMPORARY WORKPLACES AND THE FACTUAL FOUNDATIONS IN SCHRENK
Human rights law protects individuals against discrimination in a variety of private contexts and relationships, including in relation to employment. Specifically, section 13 of the Code prohibits discrimination "regarding employment": (3)
(1) A person must not ... (b) discriminate against a person regarding employment or any term or condition of employment Historically, employment discrimination claims under section 13 of the Code (as with other provincial human rights instruments), have been directed at employers or superiors who engage in discriminatory conduct against employees in the workplace or fail to address discriminatory conduct perpetrated by other actors in the workplace. (4) This was premised on the understanding that employers and superiors hold a direct position of economic power over individual workers, and control over the workplace. (5) In Schrenk, the central question was whether the protection against employment discrimination could apply to other actors in the workplace. Specifically, as detailed below, the question in this case centred on whether individuals who physically work in the same workplace, yet are employed by different employers, could hold obligations and rights in relation to each other under section 13 of the Code.
The original complainant, Mr. Sheikhzadeh-Mashgoul, filed a complaint with the British Columbia Human Rights Tribunal against Mr. Schrenk, alleging discrimination regarding employment under section 13 on the basis of religion, place of origin, and sexual orientation (6) Mr. Schrenk filed an application to dismiss the complaint on the basis that his relationship to Mr. Sheikhzadeh-Mashgoul was not within the contemplated scope of section 13. In other words, that because Mr. Schrenk 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." (7) Not only was Mr. Schrenk not Mr. Sheikhzadeh-Mashgoul's employer or supervisor, he was also not a "co-worker", as that term might be traditionally understood as pertaining to two employees with the same employer. (8)
Mr. Schrenk and Mr. Sheikhzadeh-Mashgoul worked on the same construction job site in Delta, British Columbia. Mr. Sheikhzadeh-Mashgoul was a civil engineer with Omega and Associates Engineering, Ltd., an engineering firm hired by the municipality of Delta to supervise a road improvement project. (9) Mr. Schrenk was a site foreman and superintendent for Clemas Contracting Ltd., the primary construction contractor hired by the municipality of Delta to carry out the project. (10) As such, Mr. Sheikhzadeh-Mashgoul and Mr. Schrenk worked on the same physical job site on a day-to-day basis during the project.
A contract between the municipality of Delta and Clemas specified that Omega "had certain supervisory powers over Clemas employees, including the right to ask for the removal of any Clemas worker who appeared 'to be incompetent or to act in a disorderly or intemperate manner.'" (11) After two incidents of Mr. Schrenk making racist and derogatory remarks to Mr. Sheikhzadeh-Mashgoul, (12) Clemas agreed to remove Mr. Schrenk from the worksite following requests from Delta and Omega. (13) Subsequent to his removal, Mr. Schrenk sent two emails to Mr. Sheikhzadeh-Mashgoul, copying Clemas employees, that contained derogatory homophobic comments. (14) Mr. Schrenk was terminated by Clemas following these incidents. (15) Mr. Sheikhzadeh-Mashgoul then filed a human rights complaint against Mr. Schrenk and Clemas. (16)
As workers who physically laboured together at the same job site and yet were employed by different entities, the nature of the relationship between Mr. Sheikhzadeh-Mashgoul and Mr. Schrenk may seem unique, and the industries in which such a relationship might arise may seem relatively limited. However, the realities of contemporary employment and the labour landscape in Canada, as elsewhere, indicate that situations and relationships like in Schrenk are becoming an increasingly common feature of the 21st-century workplace. Many workplaces are now characterized by the presence and use of multiple contractors and sub-contractors, as was the case in Schrenk. (17) A growth in temporary agency work, employment intermediaries, and the contracting out or subdivision of labour within a single workplace means that a growing number of workers may labour together yet be employed by different entities. (18) For example, Fiera Foods was an industrial bakery staffed with workers from 13 different temporary agencies. (19) One worker who anonymously spoke to an investigative journalist related difficulties in sorting out who was ultimately responsible for her employment and who to approach in the case of a pay discrepancy. (20) The ambiguity of the employment relationship and the responsibilities under it is a common challenge in situations of temporary agencies, and can complicate matters when employment violations arise, including discrimination in the workplace. Further, workers may be misclassified as "independent contractors" and yet work alongside legally classified "employees" in the same workplace. (21) Identifying divisions of legal responsibility and authority in these contexts is difficult.
The kinds of complicated employment relationships attending workplaces like those described above and in Schrenk illustrate different manifestations of what Weil has described as the "fissured workplace". (22) A fissured workplace is one in which historical direct-employment relationships have been shed in favour of an approach that contracts out specific aspects of the business model to external employers and entities. The consequences of the fissured workplace include an erosion of effective workplace rights and protections for workers:
[t]raditional approaches to enforcing those laws similarly ignore the myriad new relationships that lie below the surface of the workplace. As a result, the laws crafted to safeguard basic standards, to reduce health and safety risks, and to cushion displacement from injury or economic downturn often fail to do so. (23) While Weil's work focuses on the US, the fissured workplace is not a foreign concept in the Canadian labour market, where contracting out particular jobs or aspects of a workplace--such as janitorial services, food services, and other jobs--are increasingly common in both the public and private sectors. (24) Subcontracting labour, as well as a tendency to misclassify workers as independent contractors, creates conditions where wages, health and safety, and other conditions are work are depressed and may contravene legal requirements. (25) As such, similar risks and concerns pertaining to the suitability of legal regimes in the workplace exist in Canada. In other words, a growing number of...