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Fasken Martineau Lawyers to Argue Before the Supreme Court of Canada: Critical Question Relating to the Scope of Human Rights Legislation

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Human Rights Bulletin

On Tuesday, March 28, 2017, Mark D. Andrews, David G. Wong, and Stephanie T. Gutierrez of Fasken Martineau’s Vancouver office, will appear before the Supreme Court of Canada, acting on behalf of the individual respondent Edward Schrenk, on an appeal by the B.C. Human Rights Tribunal.

At risk in the appeal are the control of employers over their workplaces, expansion of potential liability to members of the general public, and the efficiency of the human rights systems.

The complainant and Mr. Schrenk were working on a construction project for different employers.  The complainant alleged that Mr. Schrenk made three derogatory statements relating to the complainant while on the worksite: one at the outset that the complainant did not take seriously, the second to the complainant that was addressed, and the third to a third-party who told the complainant.  The complainant reported that comment to his employer and Mr. Schrenk was removed from the worksite.  Months later, Mr. Schrenk sent the complainant two emails with inappropriate language after which Mr. Schrenk’s employment was terminated.  The complainant filed a human rights complaint against three parties: the owner of the construction project, the employer of Mr. Schrenk, and Mr. Schrenk himself.

The Tribunal denied an application to dismiss the complaint on the basis that it did not have jurisdiction relating to the complaint against Mr. Schrenk.  That decision was upheld by the Supreme Court of B.C.  The B.C. Court of Appeal overturned that decision and held that the Tribunal did not have jurisdiction in relation to the complaint of the complainant against Mr. Schrenk.  The Tribunal applied for and was granted leave to appeal to the Supreme Court of Canada.

Before the Supreme Court of Canada, the Tribunal is arguing that its jurisdiction to hear complaints is sufficiently broad to include the relationship between Mr. Schrenk and the complainant.  If accepted, the Tribunal’s position would mean that human rights legislation is so broad as to allow employees to file human rights complaints against anyone, regardless of their relationship to the employees.  Such a finding could result in individual members of the public who encounter workers in the course of their everyday activities – for example shopping, at restaurants, on the street, etc. –being subject to human rights complaints and having to go through the stressful and time consuming process of defending themselves against such complaints.  As well, such a broadening of the Tribunal’s jurisdiction would result in the Tribunal interfering with and infringing upon the role of the employer who is charged with addressing all issues relating to a person’s work.  It could also result in a proliferation of complaints and further delays in the Tribunal’s already backlogged processing of complaints.

On behalf of Mr. Schrenk, we will be arguing that human rights legislation is thoughtfully crafted to create a system whereby the party in a relationship of control and dependence with the complainant – for example an employer – has control and responsibility for ensuring the complainant does not suffer discrimination in their work.  The Tribunal only has a role to play where that party is the discriminating party or fails to adequately address the alleged discriminatory harassment in the workplace; it should not and does not have the jurisdiction to weigh in on every allegation of discriminatory harassment that someone says occurs while they are at work.  In this way, the legislation creates a focussed and efficient system to allow those in positions of control to address issues while still ensuring individuals do not suffer discriminatory impediments to their full and free participation in the workplace.

Whatever the decision of the Supreme Court of Canada may be in this case, Fasken Martineau is honoured to be able to present argument in this important case and to continue to be a leader in human rights defence work across the country.

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