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Definition of Harassment Expanded by Canada’s Highest Court

By December 15, 2017November 28th, 2019Employment Law

Canada’s highest court, the Supreme Court of Canada, has just expanded the definition of harassment in the workplace.

Harassment in the workplace now includes harassment from those co-workers who “have a different employer.”

The Case

In 2013, a civil engineer in British Columbia was the target of repeated derogatory comments and emails concerning race, religion and sexual orientation while working as a supervising engineer for Omega and Associates Engineering Ltd. (“Omega”) on a road project.

The comments were made by the foreman of the work site (Edward Schrenk), who was working on the same project as the engineer but for a different employer called Clemas Construction Ltd (“Clemas”).

Omega had certain supervisory powers over employees of Clemas.

The harassing comments were extreme. In September 2013, after Mr. Schrenk asked about the engineer’s origin and religion, Mr. Schrenk asked in front of other employees, “You are not going to blow us up with a suicide bomb, are you?”

Another incident occurred in November 2013, when Mr. Schrenk physically shoved the engineer and called him a “f****** Muslim piece of s***.” As the engineer went to inform his supervisor, Mr. Schrenk continued, asking “Are you going to call your gay friend?”

When the employee raised his concerns at a meeting with his employer, the harasser and the harasser’s employer,  Mr. Schrenk’s removal from the worksite was discussed, but only if his behaviour persisted.

Unfortunately, the behaviour persisted.

On December 13, 2013, Mr. Schrenk yelled at the engineer: “Go back to your mosque where you came from.” After that incident, all the employers involved immediately removed the harasser from the workplace (although he kept his job and was still involved in the same road project for another 2 months).

Oddly enough, the harasser’s improper conduct again persisted. In March 2014, Mr. Schrenk sent an unsolicited email to the engineer in which he made derogatory insinuations about his sexual orientation. For some reason, Mr. Schrenk copied the email to two of his own supervisors.

Understandably, the engineer forwarded it to his employer who in turn sent it to the harasser’s employer. Mr. Schrenk’s employer told him to stop sending such emails.

Nevertheless, the next day Mr. Schrenk sent a second derogatory email of a homophobic nature to the engineer.

Following this, Clemas terminated Mr. Schrenk’s employment on March 28, 2014.

The Lower Court Decisions

The engineer filed a human rights complaint against Mr. Schrenk and Mr. Schrenk’s employer. Mr. Schrenk asked the Human Rights Tribunal in British Columbia to dismiss the complaint because the two people involved were not in a direct employment relationship. The Human Rights Tribunal denied the harasser’s request. The next level of court, the Supreme Court of British Columbia, did not change that decision.  The British Columbia Court of Appeal, however, overturned the Tribunal’s decision and agreed with the harasser.

The Supreme Court of Canada Decision

The matter went to the Supreme Court of Canada which upheld the original Tribunal decision (British Columbia Human Rights Tribunal v. Schrenk).

The majority of the judges on the Supreme Court found that since Mr. Schrenk was the foreman of the work site, he was an integral and unavoidable part of the engineer’s work environment – despite being employed by a different employer than the engineer. Important to this finding was that the engineer’s employer had some supervisory powers over  the harasser and employees of Clemas.

The Supreme Court confirmed that harassment may be found to occur in a workplace in a variety of different situations, including where the harasser was integral to the victim’s workplace, and where the improper conduct occurred in the victim’s workplace, and where the victim’s work performance or work environment was negatively affected.

For this case, the Supreme Court agreed that the harassment was perpetrated against an employee by someone integral to his employment context. By harassing the engineer on the basis of religion, place of origin, and sexual orientation, the harasser’s discriminatory behaviour was found to have a detrimental impact on the engineer’s workplace. That was enough for the Supreme Court to agree that the engineer had met the test for discrimination in employment.

Impact on Workplaces in Ontario

This brand new case has definitely expanded the definition of harassment in the workplace. Coming from the Supreme Court of Canada, all human rights tribunals and court will need to take heed of this expanded definition.

We have dentists ask us from time to time about the impact of contractors or other non-employed workers who enter a dental office, like an x-ray technician, or a sales rep, or equipment inspector.  Do the office’s workplace policies apply to those people who provided services to the office but are not employed? This of course will depend on the facts of each situation, but if the harasser was found to be integral to the office (what does integral mean? could this perhaps be expanded to include service reps who attend in the office every other month and whose services are integral to the office?), the harassment happened in the workplace (the rep comes to the office), and the victim’s work performance or environment was negatively affected; then the employer could be liable for damages for harassment.

The law in Ontario hasn’t changed: employers must protect their workers from harassment and have policies to address harassment complaints properly. But now, this protection may apply to a broader scope of people coming in and out of the office.

If you want to speak more about this case, or a specific case in your office, or how to improve your harassment investigation procedures, give us a call or email.

The Content of this post is provided for informational purposes only. It is not intended to be legal, financial, tax, or other professional advice of any kind. You are advised to contact DMC (or other counsel) to seek specific legal advice concerning your individual situation.