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Date:
2017.12.28

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THE EMPLOYERS' EDGE

Employees May Bring Discrimination Complaints Against the Employees of a Different Employer, says Canada’s Highest Court

Practice Areas: Human Rights

In a recent decision, Canada’s highest court reminded employers that human rights legislation is to be interpreted very broadly. So broadly, that employees may now, in some cases, bring discrimination complaints against the employees of a different employer.

In this case, the Complainant worked as a civil engineer on a road improvement project. A construction contractor on the same project employed a site foreman (the “Foreman”). The Foreman was employed by a different employer than was the Complainant. When the Foreman made racist and homophobic statements to the Complainant on the worksite, the Complainant raised the comments with his employer. Following further statements by the Foreman, the Complainant’s employer asked the Foreman’s employer to remove the Foreman from the site. The Foreman was removed without delay, but continued to be involved on the project in some capacity. When the harassment continued, the Forman’s employment was terminated.

The Complainant filed a complaint with the British Columbia Human Rights Tribunal against the Foreman alleging discrimination on the basis of religion, place of origin, and sexual orientation. The Foreman applied to dismiss the complaint, on the basis that the Complainant was not in an employment relationship with the Foreman. The Tribunal disagreed and held that it had jurisdiction to deal with the complaint. The issue of whether the Tribunal had the jurisdiction to adjudicate the complaint was appealed all the way to the Supreme Court of Canada.

There, the Supreme Court held that British Columbia’s Human Rights Code (the “Code”) is not limited to protecting employees solely from discriminatory harassment by their superiors in the workplace. Instead, the Court held that by reading the Code in line with modern principles of statutory interpretation – in the manner that best reflects the underlying aims of the statute – the Code prohibits discrimination against employees whenever that discrimination has a “sufficient nexus” with the employment context, including discrimination by their co-workers, even when those co-workers have a different employer. In support, the Court explained that employee vulnerability stems not only from economic subordination to their employers but also from being a captive audience to other perpetrators of discrimination, such as a harassing co-worker employed by a different employer.

The Court set out a test for determining whether discriminatory conduct has a sufficient nexus with the employment context. These factors are not exhaustive and their relative importance will depend on the circumstances:

(1) whether the respondent was integral to the complainant’s workplace;

(2) whether the impugned conduct occurred in the complainant’s workplace; and

(3) whether the complainant’s work performance or work environment was negatively affected.

In this case, the Foreman was not the Complainant’s employer or superior in the workplace. However, the Court found that as the foreman of the worksite, he was an integral and unavoidable part of the Complainant’s work environment and that the Foreman’s discriminatory behaviour had a detrimental impact on the workplace because it forced the Complainant to contend with repeated affronts to his dignity. Therefore, the Court held that the Tribunal had jurisdiction to adjudicate the complaint.

Take aways for Ontario employers:

The language in Ontario’s Human Rights Code is very similar to British Columbia’s Code. So while it remains to be seen whether Ontario’s Human Rights Tribunal will adopt the principles set out in the Supreme Court’s decision, there is a strong likelihood that it will.

Employers should therefore be aware that they could be responsible for discrimination against workers who are not their employees and to take these types of complaints very seriously. Employers should also consider reviewing existing discrimination policies to ensure they address situations involving interaction between their own employees and those of other employers.

The lawyers at CCPartners are experienced in all aspects of human rights law including discrimination complaints and drafting human rights policies. Click here for a list of lawyers at CCPartners who can help.


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