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, and later sent offensive emails for which he was terminated. The question before the Supreme Court of Canada was a jurisdictional one: did the British Columbia Human Rights Tribunal have jurisdiction to deal with the complaint against the now-terminated Schrenk? The BCHRT argued that it had a wide jurisdiction, and so could deal with the complaint; Schrenk disagreed, saying that the Tribunal’s jurisdiction only applied to employee/employer or directly analogous situations.

The majority (Moldaver, Karakatsanis, Wagner, Gascon and Rowe JJ) held that the jurisdiction may extend to co-workers in a joint workplace even when co-workers have a different employer. McLachlin C.J. and Côté and Brown JJ. dissented, stating that “the workplace discrimination prohibition in s. 13(1)(b) of the Human Rights Code applies only to employer‑employee or similar relationships and authorizes claims against those responsible for ensuring that workplaces are free of discrimination.”  Justice Abella, writing solely for herself, said — unsurprisingly — that the Tribunal had jurisdiction, period.

David Wong and Stephanie Gutierrez of Fasken Martineau (counsel for Mr. Schrenk) have written a useful article summarizing what they see as the key points.

“While the majority of the Supreme Court allowed the appeal, it found some middle ground and created a new “contextual” test that set some limits on what constitutes discrimination regarding employment under the Code. It held that when determining whether allegedly discriminatory conduct has a sufficient nexus with the employment context, the Tribunal must conduct a contextual analysis that considers all of the relevant circumstances, including 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. While it is not clear how this new test will be applied, it appears that individual members of the public who encounter workers in the course of their everyday activities should not be subject to human rights complaints under this test.”

“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 applies only to employer-employee or similar relationships, and allows claims against persons responsible for ensuring workplaces are free from discrimination.”

In sum, the SCC has continued the lamentable appellate court trend of not providing yes or no answers to clear questions, but rather has set out yet another contextual test which has a list of factors to be considered (but a list that is clearly stated to be “not exhaustive”, so other factors may be used by later courts) producing an outcome that can be summarized as “in Yes or No cases of question type X, please consider factors A through C (or some other factors that may come up later) bearing in mind that all cases are different … and the relative importance of each factor may vary from case to case”.

Precedent-based common law systems require clear precedents from the responsible appellate authorities. To do anything else rather negates the purpose of a common law system, and only serves as an incentive to unnecessary (and arguably inevitable) litigation because few to no cases can be weeded out by lawyers or motions courts who can say “in question type X, Y is applicable and Z is not”.

The Ontario Code’s provisions most comparable to the British Columbia case are ss. 5, 23 and 24. Like the BC legislation it uses the words “person” and “employment”, and it is almost certain that the Human Rights Tribunal of Ontario [HRTO] will make use of the opportunity to widen its jurisdiction: the Ontario Human Rights Commission was, in fact, an intervenor in the Schrenk case, and its factum makes it clear that it supports the much-widened jurisdiction: it sought a very vagueness-driven mandate: “dignity” [which is in the legislation], “social characteristics” and “ability to influence”, etc., none of which which is easily defined or limited, and all of which could cover just about every person or situation that might come before the Tribunal.