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Supreme Court of Canada (SCC) Issues Landmark Decision About Scope of Discrimination Under BC’s Human Rights Code

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Vancouver (Canada) – The Supreme Court of Canada (SCC) found in its December 15, 2017 decision in Schrenk v BC Human Rights Tribunal that the British Columbia Human Rights Code is not limitless in its scope. Specifically, in this much-anticipated decision, a majority of the SCC explained the contextual approach to be taken in assessing whether a complaint of discrimination regarding employment is within the jurisdiction of the BC Human Rights Tribunal.

Fasken appeared before the SCC acting on behalf of the individual respondent on an appeal by the B.C. Human Rights Tribunal.

In its decision, the majority of the SCC held that when determining whether allegedly discriminatory conduct has a sufficient nexus to bring it within the employment context, the Tribunal must conduct a contextual analysis that considers all of the relevant circumstances. This assessment may include whether the respondent was integral to the claimant’s workplace, whether the impugned conduct occurred in the claimant’s workplace, and whether the claimant’s work performance or work environment was negatively affected.

Notably, Chief Justice McLachlin, on behalf of herself, Justice Cote and Justice Brown, wrote a strong dissent, holding that the workplace discrimination prohibition in the Code is more targeted and applies only to employer-employee or similar relationships, and allows claims against persons responsible for ensuring workplaces are free from discrimination.

Mark D. Andrews, David G. Wong, and Stephanie D. Gutierrez of Fasken’s Vancouver office, appeared 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. With a strong Human Rights speciality practice, Fasken is sought after to advise its clients across a broad scope of human rights issues, including employment, private and public services, tenancy and publication.

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