Michael Ford (post until Oct. 31/18)
Employment & Labour

Supreme Court of Canada takes expansive approach to discrimination

By Laura Williams

The Ontario Human Rights Code protects people from discrimination in a variety of settings, including in employment. Under the Ontario Human Rights Code, every person has a right to “equal treatment with respect to employment” without discrimination or harassment because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. This covers every aspect of the employment relationship, including recruitment, training, transfers, promotions, dismissal, layoffs, pay, overtime, hours of work, holidays, benefits, shift work, discipline, and performance evaluations.

While not all human rights legislation in Canada is the same, Ontario’s Human Rights Code shares many similarities with human rights legislation in several provinces and territories, including British Columbia, while other provinces, for example, Saskatchewan, take a narrower approach and specify, for example, that only discrimination by “employers” is covered.

An expansive approach

In its late 2017 decision in this case, the Supreme Court of Canada considered a complaint alleging discrimination at the workplace by an employee against the foreman of the primary construction contractor that was engaged by the complainant’s employer and with whom the complainant worked as part of his employment. The respondent made racist and homophobic statements to the complainant, who filed a complaint before the British Columbia Human Rights Tribunal. The respondent applied to dismiss the resulting complaint on the basis that the British Columbia Human Rights Code did not apply because the complainant and respondent were not employed by the same employer.

The Supreme Court found that the British Columbia Human Rights Code, which prohibits discrimination “regarding employment” against employees, applies when that discrimination has “a sufficient nexus with the employment context.” Therefore, it does not restrict who can perpetrate the discrimination. Whether discrimination occurred should be considered in context based on factors including, but not limited to:

  • Whether the perpetrator was integral to the complainant’s workplace;
  • Whether the discrimination occurred in the complainant’s workplace; and
  • Whether the complainant’s work performance or environment was affected negatively by the discriminatory behaviour.

Taking this contextual approach, the court found that the respondent’s behaviour amounted to discrimination regarding employment as he was an integral and unavoidable part of the complainant’s work environment.

What does this mean for employers?

Although this decision was based on British Columbia’s human rights legislation, the similarly broad wording of Ontario’s Human Rights Code, which prohibits discrimination “with respect to employment,” suggests that the same approach would apply in Ontario. The same is likely true for employers in other provinces with similar provisions, such as Manitoba, New Brunswick, Nova Scotia, and Prince Edward Island. Because of the Supreme Court’s decision, Ontario employers may begin to face more discrimination allegations by those they do not employ, such as contractors, and by employees based on actions by others in the workplace who do not work for the same employer. As a result, employers should consider reviewing their workplace anti-discrimination policies to ensure that appropriate standards of conduct are clearly set out, as well as consequences for inappropriate, discriminatory behaviour.

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