on appeal from the court of appeal of british columbia

48 Pages·2017·0.58 MB·English

S.C.C. FILE NO. 37041
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL OF BRITISH COLUMBIA)
BETWEEN:
BRITISH COLUMBIA HUMAN RIGHTS TRIBUNAL
APPELLANT
(Respondent)
AND:
EDWARD SCHRENK
RESPONDENT
(Appellant)

FACTUM OF THE APPELLANT,
BRITISH COLUMBIA HUMAN RIGHTS TRIBUNAL
(Pursuant to Rule 42 of the Rules of the Supreme Court of Canada)

Counsel for the Appellant Agent for the Appellant

Katherine A. Hardie Michael J. Sobkin
Devyn Cousineau Barrister and Solicitor

BC Human Rights Tribunal
1170 – 605 Robson Street 331 Somerset Street W.
Vancouver BC V6B 5J3 Ottawa, ON K2P 0J8

Tel: [phone] and 604-775-2048 Tel: [phone]
Fax: [phone] Fax: [phone]
Email: [email protected] Email: [email protected]
[email protected]
Counsel for Respondent Agent for the Respondent
Mark D. Andrews, Q.C. Yael Wexler
David G. Wong

Fasken Martineau DuMoulin LLP Fasken Martineau DuMoulin LLP
2900 – 550 Burrard Street 1300 – 55 Metcalfe Street
Vancouver, BC V6C 0A3 Ottawa, ON K1P 6L5

Direct Line: 604-631-3115 Direct Line: 613 696 6860
Tel: [phone] Tel: [phone]
Fax: [phone] Fax: [phone]
E-mail: [email protected] E-mail: [email protected]
i
TABLE OF CONTENTS

Part I – Overview and Statement of Facts ........................................................................................ 1
A. Overview ........................................................................................................................... 1
B. Statement of facts .............................................................................................................. 2
1) The human rights complaint .......................................................................................... 2
2) BC Human Rights Tribunal decision ............................................................................. 6
3) BC Supreme Court decision ........................................................................................... 8
4) BC Court of Appeal decision ......................................................................................... 8
Part II – Question in Issue ................................................................................................................ 9
Part III – Statement of Argument ..................................................................................................... 9
A. Employees are protected in their employment ................................................................ 10
B. “Persons” are prohibited from discriminating in employment ........................................ 14
C. “Regarding employment” means related to employment ................................................ 18
D. Discriminatory harassment harms dignity and erects barriers in the workplace ............. 26
1) Discriminatory harassment is an abuse of power, broadly understood ....................... 26
2) Subordinates, co-workers and third parties may wield power ..................................... 29
3) Individuals and employers are responsible for workplace harassment ........................ 34
E. Conclusion ....................................................................................................................... 39
Part IV – Submissions on Costs ..................................................................................................... 39
Part V – Order Sought .................................................................................................................... 39
Part VI – Table of Authorities ........................................................................................................ 40
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PART I – OVERVIEW AND STATEMENT OF FACTS
A. Overview
1. The key issue in this appeal relates to the scope of the BC Human Rights Tribunal’s
jurisdiction over discrimination in employment. More specifically, the issue is whether the
Tribunal has broad, remedial jurisdiction to address all forms of discrimination faced by
employees in their work, or whether its jurisdiction is limited to complaints against an employer
or an actor with similar economic authority.
2. The BC Court of Appeal limited the Tribunal’s jurisdiction to circumstances where the
respondent is an actor with authority to impose economic burdens on an employee.1 Economic
authority, the Tribunal submits, offers an impoverished and incomplete measure of the way that
discriminatory barriers may be imposed on employees. In particular, it fails to recognize the
effects of discriminatory harassment, which is harm that anyone in a workplace may be able to
inflict.
3. The Tribunal submits that its jurisdiction is triggered by an allegation that a person has
discriminated against an employee in connection with their employment. This captures conduct
that arises out of, and affects, the complainant’s work environment. It does not limit, on a
categorical basis, the actors who may be liable for discrimination.
4. Within its jurisdiction, the Tribunal goes on to do a more searching excavation of the facts
to determine whether discrimination regarding employment has occurred. This includes analysing
issues like the roles of the complainant and respondent, the nature of the conduct, where it
occurred and its impact on the complainant in relation to their employment. All of these
considerations require a robust understanding of the facts and human rights law.
5. This interpretation of the Human Rights Code arises from its plain language, reflects its
legislative evolution and is consistent with a strong body of case law. It also advances the Code’s
broad public purpose of protecting human rights in those areas of social activity to which it
applies and places responsibility on those actors with control over discrimination. It recognizes

1 Schrenk v. British Columbia (Human Rights Tribunal), 2016 BCCA 146, Appellant’s Record
(“A.R.”), Vol. I, tab 4 [BCCA Decision] at para 33.
2
the diversity of circumstances faced by employees in modern workplaces and ensures that human
rights law remains agile enough to make an employee’s right to a discrimination-free work
environment meaningful.
B. Statement of facts
6. This appeal concerns only the Tribunal’s jurisdiction to determine whether Edward
Schrenk, respondent to the appeal, discriminated against Mohammadreza Sheikhzadeh-Mashgoul
in his employment, contrary to s. 13 of the BC Human Rights Code (“Code”),2 which provides:
Discrimination in employment
13 (1) A person must not
(a) refuse to employ or refuse to continue to employ a person, or
(b) discriminate against a person regarding employment or any term or
condition of employment
because of the race, colour, ancestry, place of origin, political belief, religion,
marital status, family status, physical or mental disability, sex, sexual
orientation, gender identity or expression, or age of that person or because that
person has been convicted of a criminal or summary conviction offence that is
unrelated to the employment or to the intended employment of that person.
…
(4) Subsections (1) and (2) do not apply with respect to a refusal, limitation,
specification or preference based on a bona fide occupational requirement.
7. Mr. Schrenk raised the issue before the Tribunal on a preliminary application. There has
been no hearing on the merits of the complaint.
1) The human rights complaint
8. This case arises in the context of a road construction project undertaken by the
Corporation of Delta, a municipality in BC (“Delta”).
9. Delta contracted with Omega & Associates Civil and Structural Engineering (“Omega”)

2 Human Rights Code, 1996 RSBC c. 210 [Code].
3
to act as Consulting Engineer and Contract Administrator on the project.3 Mr. Sheikhzadeh-
Mashgoul was assigned to act as Omega’s site representative. The parties did not dispute that Mr.
Sheikhzadeh-Mashgoul was in an employment relationship with Omega.
10. Delta also contracted with Clemas Contracting Ltd. (“Clemas”) to act as the prime
contractor on the project.4 Mr. Schrenk was employed by Clemas. He was the “foreman / site
superintendent” on the project.5 His duties included the supervision of the work site.6
11. Under the terms of Delta’s contract with Clemas, Omega had the authority to request that
any worker employed by Clemas, who appeared incompetent or acted in a disorderly manner, be
removed from the project. Clemas was required to abide by the request immediately.7
12. Work on the project began in August 2013. The allegations of discrimination span the
period from September 2013 until March 2014.
13. Mr. Sheikhzadeh-Mashgoul identifies himself as a Muslim man who immigrated to
Canada from Iran in 2002.8 He alleges that in September 2013, Mr. Schrenk asked him about his
place of origin and religion. Then he said to Mr. Sheikhzadeh-Mashgoul: “You’re not going to
blow us up with a suicide bomb are you?”9
14. Two months later, on November 28, 2013, Mr. Schrenk and Mr. Sheikhzadeh-Mashgoul
had an argument. Mr. Sheikhzadeh-Mashgoul says that the argument was about “the quality of
work”. Mr. Schrenk says that it was about his concern that Mr. Sheikhzadeh-Mashgoul was being

3 A.R., Vol. II, tab 12-A, p. 3, para 3.
4 A.R., Vol. II, tab 12-A, p. 3, para 3.
5 A.R. Vol. II, tab 12-D, p. 88, para 9.
6 A.R. Vol. II, tab 12-E, p. 100, para 9.
7 A.R. Vol. II, tab 13-A, p. 113, para 19.
8 A.R. Vol. II, tab 13-D, p. 81, para 11; A.R. Vol. I, tab 11-A, p. 87.
9 A.R. Vol. I, tab 11-A, p. 84.
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“excessively picky and critical of work protocol”.10 Mr. Sheikhzadeh-Mashgoul alleges that, in
the course of the argument, Mr. Schrenk pushed Mr. Sheikhzadeh-Mashgoul and yelled at him:
“Get the f*** out of my site, I’m the superintendent. You f*** muslim piece of shit”.11 When
Mr. Sheikhzadeh-Mashgoul picked up his cellphone to call his supervisor, Mr. Schrenk
continued: “Are you going to call your gay friend?” and said he was “such a girl, keeps bitching
and sending emails all day long”. Mr. Sheikhzadeh-Mashgoul says that this reference was to
emails he had sent to Delta to report inferior work on the project.12
15. The November 28 incident was discussed at a project meeting later that day, with
representatives present from Delta, Omega and Clemas. Mr. Schrenk and Mr. Sheikhzadeh-
Mashgoul were both present. The outcome of the discussion was that the parties agreed that Mr.
Schrenk’s behaviour was not acceptable but that he would continue to work on the project.13
16. Mr. Sheikhzadeh-Mashgoul alleges that the next incident occurred on December 12,
2013. As he was leaving the site, he says that Mr. Schrenk yelled and swore at him, and then tried
to block his way with his truck. Another contractor on the site later told Mr. Sheikhzadeh-
Mashgoul that Mr. Schrenk had yelled at him “go back to your mosque where you came from” as
he walked away.14
17. On December 13, 2013, Mr. Sheikhzadeh-Mashgoul wrote to Delta and Clemas, on behalf
of Omega, asking that Mr. Schrenk be pulled off the project immediately.15 This request was
confirmed by his supervisor. Delta relayed the request to Clemas, which removed Mr. Schrenk

10 A.R. Vol. I, tab 11-E, p. 114.
11 A.R. Vol. I, tab 11-A, pp. 84 and 87; A.R. Vol. II, tab 13-C, p. 148; A.R. Vol. II, tab 13-D, p.
185, para 3.
12 A.R. Vol. I, tab 11-A, p. 84.
13 A.R. Vol. II, tab 13-A, p. 114, para 25.
14 A.R. Vol. I, tab 11-A, pp. 84 and 87; A.R. Vol. II, p. 149; A.R. Vol. II, tab 13-D, p. 186.
15 A.R. Vol. II, tab 12-A, p. 8.
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from the project. Mr. Schrenk continued to work for Clemas on other projects.16
18. On March 20, 2014, Mr. Schrenk emailed Mr. Sheikhzadeh-Mashgoul and referred to his
supervisor as Mr. Sheikhzadeh-Mashgoul’s “man friend”. Mr. Sheikhzadeh-Mashgoul forwarded
the email to his supervisor, who in turn contacted Clemas, copying Delta, to express surprise that
Mr. Schrenk was still employed by them.17
19. The next day, Mr. Schrenk sent Mr. Sheikhzadeh-Mashgoul another email, saying “ho
moe”, insinuating that he was in a sexual relationship with a male contractor on the worksite.18
20. On March 28, 2014, Clemas terminated Mr. Schrenk’s employment.19
21. On April 3, 2014, Mr. Sheikhzadeh-Mashgoul filed a complaint with the Tribunal,
alleging discrimination in employment based on his religion, place of origin and sexual
orientation.20 The complaint names Mr. Schrenk, Clemas and Delta as respondents.
22. Mr. Sheikhzadeh-Mashgoul alleges that the events negatively affected his health, home,
and work life. He was required to work daily alongside Clemas employees and it was his
responsibility to interact with Mr. Schrenk, the site foreman.21 He says he became the object of
scorn and his work performance suffered since he could not focus. His work environment became
unsafe and unhealthy. He says he was depressed, couldn’t sleep properly, and that he got more
frequent migraine headaches.22 He had intrusive memories and flashbacks of the November 28
incident, leading “to hyperventilation and headaches, fear of repetition of the event resulting in

16 A.R. Vol. II, tab 12-E, pp. 101-102, paras 21-24.
17 A.R. Vol. II, tab 12-C, pp. 85-86; A.R. Vol. I, tab 11-A, p. 87.
18 A.R. Vol. II, tab 13-C, p. 173.
19 A.R. Vol. II, tab 13-B, p. 135, para 25.
20 A.R. Vol. I, tab 11-A.
21 A.R. Vol. II, tab 13-E, p. 196, para 15.
22 A.R. Vol. I, tab 11-A, pp. 87-88; A.R. Vol. II, tab 13-D, p. 188, para 10.
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avoidance behavior when I deal with other contractors in my current job”.23 He lost confidence in
himself, which affected his decision-making skills at work. Eventually, Mr. Sheikhzadeh-
Mashgoul took time off from work to take two courses to evaluate his skills “to find out what
went wrong that I could not succeed to maintain a respectful work relation in this project”.24
23. In his response to the complaint, Mr. Schrenk admits that he said “you’re not going to
blow us up, are you?” but denies he asked about Mr. Sheikhzadeh-Mashgoul’s religion or place
of origin. He does not recall saying, “are you going to call your gay friend?”, or “go back to the
mosque where you came from”, or believe that he said “you muslim piece of shit”. He admits
sending the March emails. Finally, Mr. Schrenk explains that he had suffered a brain injury
which left him with “behavioural problems”. He says he had been “punished enough” and there
was no utility to a deterrent remedy.25 In this regard, Mr. Sheikhzadeh-Mashgoul responds that he
was the only person on the site that Mr. Schrenk did not have patience for.26
2) BC Human Rights Tribunal decision
24. Mr. Schrenk, Delta and Clemas applied to the Tribunal to have Mr. Sheikhzadeh-
Mashgoul’s complaint dismissed without a hearing under s. 27(1) of the Code. They argued that:
(a) the complaint was not within the Tribunal’s jurisdiction because there was no employment
relationship between Mr. Sheikhzadeh-Mashgoul and any of the respondents; (b) the acts or
omissions alleged in the complaint did not contravene the Code; (c) there was no reasonable
prospect that the complaint would succeed; and (d) proceeding with the complaint would not
further the purposes of the Code.27
25. In the course of the submissions related to the application, Mr. Sheikhzadeh-Mashgoul

23 A.R. Vol. II, tab 13-D, p. 188, para 10.
24 A.R. Vol. II, tab 13-E, p. 197, para 20.
25 A.R. Vol. I, tab 11-E, pp. 113-117.
26 A.R. Vol. II, tab 13-D, p. 118, para 7.
27 Sheikhzadeh-Mashgoul v. Clemas Contracting and another, 2015 BCHRT 17, A.R. Vol I, tab 1
[Tribunal Decision] at paras 3-5; Code, supra note 2, s 27(1).
7
advised that Delta’s materials had provided him with more insight about Delta’s efforts to end
Mr. Schrenk’s harassment, and he therefore withdrew his complaint against Delta.28
26. The Tribunal denied Mr. Schrenk’s application (and that of Clemas) to dismiss the
complaint. With respect to its jurisdiction, the Tribunal rejected the proposition that there must be
an employment relationship between a complainant and a respondent. The Tribunal held that s.
13 of the Code “prohibits ‘persons’ from discrimination regarding employment or terms and
conditions of employment and does not limit a ‘person’ to an employer or someone in an
employment-like relationship with the complainant.”29 Referencing this Court’s decision in
McCormick v. Fasken Martineau DuMoulin LLP,30 the Tribunal said:
As the Court notes, s. 13 protects those in an employment context. The context
of s. 13 of the Code is that the complainant must be an employee, as that term
may be liberally defined, who suffers a disadvantage in his or her employment in
whole or in part because of his or her membership in a protected group. The
focus is on the effect on the “employee” and his or her employment.31
27. The Tribunal concluded that employees on a construction site are protected from
discriminatory harassment by persons working for another employer on the same site.32
28. With respect to Mr. Schrenk’s and Clemas’ submission that proceeding with the
complaint would not further the purposes of the Code, the Tribunal noted that neither party had
approached Mr. Sheikhzadeh-Mashgoul to offer an apology or explanation, and Clemas had
attempted to minimize Mr. Schrenk’s behaviour by referring to Mr. Sheikhzadeh-Mashgoul as a
“green” engineer. In those circumstances, the Tribunal was not persuaded that Mr. Schrenk or
Clemas had done all that they “could reasonably have done to appropriately resolve the situation

28 A.R. Vol. II, tab 13-F, pp. 201-202; A.R. Vol. I, tabs 11-F and 11-G.
29 Tribunal Decision, supra note 27 at para 43.
30 McCormick v. Fasken Martineau DuMoulin LLP, 2014 SCC 39 [McCormick].
31 Tribunal Decision, supra note 27 at para 45.
32 Tribunal Decision, supra note 27 at para 50.