The Canadian Construction Association (CCA) is awaiting the status of a Supreme Court of Canada case that could expand the scope of human rights legislation.
The CCA became involved after it was approached by national law firm Torys LLP about an appeal of a B.C. Court of Appeal decision in Schrenk v. British Columbia (Human Rights Tribunal) to the Supreme Court of Canada. The case involves whether provincial human rights legislation applies to a construction (multi-employer) site where alleged discrimination is occurring between employees of different companies/employers.
The CCA was granted intervenor status by the court in February.
CCA president Michael Atkinson explained that the complainant in the case was a site representative of the consulting engineering firm engaged by the owner. Edward Schrenk was the contractor’s site foreman.
The complainant alleged that Schrenk made highly derogatory comments regarding the complainant’s sexual orientation, place of birth and religion and followed those up with emails to the same effect.
The complainant brought a claim against Schrenk at the B.C. Human Rights Tribunal and against Schrenk’s employer, the contractor, but discontinued his claim shortly thereafter. The B.C. Human Rights Tribunal found that the alleged incident did fall within its jurisdiction despite the lack of an employment relationship between the complainant and Schrenk.
Upon appeal, the B.C. Court of Appeal held that the tribunal had erred in its finding and concluded that the provincial human rights legislation does not apply where the person who engaged in the discriminatory conduct was not in a position to force that person to endure the conduct as a condition of employment.
"The basic concern is seeing provincial human rights legislation applying to a construction (multi-employer) site where the alleged discrimination/harassment is occurring between employees of different companies/employers," wrote Atkinson in an email to the Journal of Commerce. "While employers can control such actions as between their employees and can discipline employees demonstrating such unacceptable behaviour, they cannot control someone else’s employees."
Atkinson added that if the Supreme Court were to overturn the decision on appeal it would mean that contractors and others on construction sites would be subject to provincial human rights regimes in a much broader fashion and could face claims from someone else’s employee about discriminatory behaviour from one of their employees.
"Provincial human rights legislation was not intended to deal with that type of third party discrimination in a workplace," stated Atkinson. "It deals with discriminatory acts as between employees and their prospective or actual employer or as between employees of the same employer."
He noted that the matter is normally handled in the construction industry through contract provisions. He cited several provisions used by Defence Construction Canada (DCC) as examples, including an "Unsuitable Worker" provision.
The provision states that, "The DCC Representative shall instruct the Contractor to remove from the site of the Work any person employed by the Contractor for purposes of the Contract who, in the opinion of the DCC Representative, is incompetent or is guilty of improper conduct, and the Contractor shall not permit a person who has been removed to return to the site of the Work."
According to documents the CCA has filed in the case, if the decision were overturned it could also be necessary to gut existing construction contracts.
"This appeal has the potential to substantially modify the status quo relating to this contractual allocation of risk on construction projects," reads a CCA affidavit. "If allowed, the appeal would expand the scope of human rights legislation into an area of complex commercial relationships that already address discrimination and other forms of employee misconduct through well-established mechanisms. Contractual relationships that, as a matter of standard practice in Canada, allocate the risk of employee misconduct to one company within the web of contracts on site, would need to be redrawn."
The Supreme Court granted the CCA intervenor status on Feb. 22. Others granted intervenor status include the Alberta Federation of Labour and the Ontario Human Rights Commission. The appeal was heard by the Court on March 28, 2017. No judgment has been published to date.